© Chappatte in The New York Times
I still hope Joe Biden will withdraw, but there’s nothing I can add right now to the torrent of commentary on an issue that you are already drowning in. In the end, Joe and Jill Biden will choose. And we’ll all have to deal with whatever they decide.
I’m petrified over the damage Trump would wreak if he is re-elected, but that’s a subject for future chronicles. Instead, I want to briefly focus today on the damage he has already done by giving us a Supreme Court that can no longer be counted on to serve as a backstop for our democracy.
The Court is expected to disclose its decision in Trump’s immunity case tomorrow, but it has already failed in its duty by postponing its announcement so long. (With the exception of the Covid period, the Court has rarely, if ever, waited to July to finish its term.) It has already given Trump everything he needed: enough time to insure that his trial on the Jan. 6 insurrection will not take place before the election.
The majority on this Court has also made clear that it wants to take the United States back to the era before the New Deal, undermining voting rights, making it far harder to prosecute political corruption (including Clarence Thomas), ending women’s autonomy over their own bodies, and – in a couple of cases announced last week that are being overlooked in the wake of the debate debacle – gutting the ability of the federal government to carry out it’s most basic responsibilities, including protecting the environment and regulating dangerous business behavior.
Here’s a report from Politco,
The Supreme Court’s decision to torch a once-obscure Reagan-era legal doctrine will remake one of the most fundamental aspects of power in Washington — and hobble presidents pursuing aggressive policies on anything from abortion to student debt relief.
Peeling back the doctrine known as Chevron deference has been a conservative cause for decades, one aimed at restricting agencies’ freedom to decide how to interpret Congress’ often-ambiguous statutes. Where Michigan produces cars and Texas pumps oil, the nation’s capital is America’s leading manufacturer of regulations, whose increasing complexity the high court is now subjecting to new scrutiny from judges. . .
(Just one example:)
Many of the mechanics around how the modern U.S. health care system operates were built on top of 40 years of the Chevron doctrine. Americans are about to find out if the two can be separated.
Medicare, Medicaid, the Food and Drug Administration, the National Institutes of Health, the Children’s Health Insurance Program, hospitals and insurance operate under thousands of pages of federal regulations — determining everything from drug prices to countering pandemics. But the high court’s ruling puts Congress and judges in charge of keeping up with evolving standards of health and medicine they’re not equipped to manage, some experts say.
And listen to the sober minded Charlie Savage, writing in the New York Times.
Twice in two days, the Supreme Court’s conservative supermajority has issued sweeping rulings that cut against established precedents and will hamstring the ability of regulatory agencies to impose rules on powerful business interests.
On Friday, the six Republican-appointed justices overturned a 40-year-old foundational part of administrative law, the Chevron doctrine, which will make it easier to successfully challenge regulations in court by eliminating a requirement that courts defer to the expertise of federal agencies in interpreting their laws.
The day before, the justices had struck down a key practice used by many agencies to enforce rules via in-house tribunals, rather than suing accused malefactors in federal court before juries.
Each decision turned on a different rationale, but both pointed in the same direction: eroding the power of the federal regulatory bureaucracy. And the pair of decisions are only the most recent notes to sound that theme, making clear that the current majority’s pursuit of a deregulatory agenda will be part of its legacy. . .
As he seeks a return to power, Mr. Trump has courted business interests behind closed doors by promising tax cuts and deregulation, including asking oil industry executives to fund his campaign and promising to roll back environmental regulations. He and his advisers have vowed to dismantle the administrative state, including bringing independent regulatory agencies under direct White House control and making it easier to fire tens of thousands of career civil servants and replace them with people loyal to his agenda.
But regardless of whether Mr. Trump is re-elected, he has already undercut this government structure. His three appointments to the Supreme Court virtually ensured it will be dominated by Republican appointees for many years, even though Democrats have won the popular vote in seven of the last eight presidential elections.
The majority has aggressively wielded its power to achieve conservative culture war victories — notably, eliminating a constitutional right to an abortion in 2022, which fulfilled another longtime goal of the conservative legal movement. But while less vivid to the general public, its unfolding assault on the administrative state may be as consequential.
In recent years, the Republican majority has also made it easier to sue agencies and get their rules overturned, including by advancing the so-called major questions doctrine. Under that idea, courts should nullify economically significant regulations if judges decided Congress was not clear enough in authorizing them.
Advancing and entrenching that idea, the court has, for example, struck down an E.P.A. rule aimed at limiting carbon pollution from power plants and barred the Occupational Safety and Health Administration from telling large employers they must either have their workers vaccinated against Covid-19 or have them undergo frequent testing. . .
But while overturning Chevron is for now the capstone victory for the conservative legal movement’s assault on the administrative state, it may not be the endpoint. More extreme opponents of regulation hope the court will go a step further, declaring a sweeping interpretation of the so-called nondelegation doctrine to be the law of the land.
Under that theory of the Constitution, Congress should not be allowed to delegate any of its lawmaking authority to technocratic experts at executive branch agencies to come up with legally binding rules. If that notion were to be embraced by a majority of the court, the entire government structure of regulatory agencies — and the rules they have developed over the decades — could fall.
I’m 73 years old and, one way or another, my remaining life won’t change that much. But for my children and grandsons, if the next four years brings us Donald Trump as president, Republicans in control of Congress, and a Supreme Court ready and willing to go along with the Heritage Foundation’s Project 2025 agenda (more on that later), their future is truly frightening.