The Founders would be dumbfounded.
Remember what you learned (maybe) in high school government class about the three “co-equal” branches of government? Well, our rogue Supreme Court says that was wrong–that judges should be the imperial, all-powerful arbiters of national life, because they know far better than the experts serving in various government agencies what government can (or really, cannot) do about elements of our common lives like air and water quality, unfair competition…you name it.
I have previously explained what was at stake in a case challenging what is called “the Chevron doctrine.” But Robert Hubbell’s Substack letter explains better than I could the appalling, immensely negative consequences of Friday’s decision over-ruling that doctrine, and I am going to quote liberally from his explanation/diatribe.
You will be able to tell your grandchildren that you lived through a judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. The open question in 2024 and beyond is whether we will reverse that revolution. The first step is to understand the earth-shaking consequences of the Court’s ruling…
The Roberts Court has anointed the judiciary as the ascendant branch of government. The person of the president—not the executive branch—is nearly omnipotent in Roberts’ schema. Congress has been neutered…
The US economy is the largest in the world by a wide margin. That size is attributable in no small measure to (a) the orderly markets and business conditions created by federal regulations and (b) the comparatively corruption-free nature of the US economy (also attributable to federal regulations).
Managing and maintaining the immense US economy is a monumental undertaking. We need regulations that control how and when fish stocks can be harvested, where medical waste can be stored, how thick concrete must be on bridge spans, what type and color of insulation must protect electrical wires, what temperature meat must be kept at when being transported across the country, and what type of information can be collected and stored in a retail transaction.
Multiply those issues by a million, and you will have a vague sense of the complexity and scale of the US economy….
Those millions of regulatory decisions demand broad and deep expertise by career professionals with advanced degrees and years of experience in their field of regulation. That expertise resides in the federal agencies housed in the executive branch under the president..Businesses hate federal regulation because they impose a trade-off: protecting the health and safety of Americans by reducing the maximum profits unrestrained businesses could earn in the short term in an unregulated economy.
The so-called “administrative state” of federal agencies has been wildly successful. It is why all international airline pilots speak English when flying between countries across the globe. It is why the US dollar is the world’s currency. It is why the world’s science, technology, and innovation hubs are located in the US. It is why every Chinese corporation that goes public in China has the goal of transferring from the Chinese stock exchanges to the New York Stock Exchange, Nasdaq, and the Chicago Options Exchange as soon as possible…
As Hubbell writes, Friday’s decision dramatically reduces the power of Congress by requiring that legislation be as specific as an instruction manual. Under Chevron, when Congress directed the Executive Branch to achieve a desired goal, agency personnel with deep expertise in the relevant area would determine how best to reach that goal. If a regulation was challenged, the Court could strike it down if evidence showed it was unreasonable, but absent such evidence, the courts deferred to the agency’s interpretation.
Hubbell provides an example:
If the Court requires Congress to specify the precise number of salmon that can be taken from the Klamath River each year rather than saying that the NOAA Fisheries Department shall establish fishing quotas to maintain healthy fish populations in inland waterways, Congress’s work will grind to a halt. Members of Congress have neither the time nor expertise to determine a healthy fish population for each inland waterway in the US. In the absence of “the administrative state,” Congress (or the courts) must serve as the regulators of the millions of daily transactions governed by federal regulations.
In the future, when a business challenges a regulation, federal judges rather than agency experts will interpret and apply–or more likely, overturn– the regulation. We’ve seen the arrogance and fact-free behavior of recent, ideologically-driven judicial appointees.
The Trump judges on the Supreme Court have accomplished things near and dear to the Rightwing heart. In addition to dramatically undermining the liberties protected by the Bill of Rights, they have substantially deconstructed the checks and balances of the Founders’ government structure. They certainly aren’t “originalists” in any sense that matters.
At best, it will take years–generations–to undo the damage. At worst, a Trump win in November and implementation of Project 2025, would foreclose any possibility of enlarging or otherwise restraining this rogue Court and beginning to reverse the enormous damage it has caused.
What is truly terrifying is how few Americans seem to understand the stakes.
This election is a choice between an elderly man who has been an exemplary President but a poor debater and an equally elderly man who, in service to his own monumental ego and his rabid White Christian Nationalist base, is intent upon destroying America as we know it.
Remember when conservatives used to complain that liberals were always trying to achieve through the courts what they couldn’t through legislation, and that progressive judges were “legislating from the bench”? Good times, yeah.
I’m so glad you wrote this. I’ve been worried about this case since the Court took it. I wonder if the six even know what they have wrought. I’m pretty sure they think they are the most clever court in history, doing what the right has only dreamed of for so many years.
Now, more than ever, we need to expand the Court. This decision is the worst in history! It makes sense to have a justice for every circuit. Thirteen circuits, thirteen justices!
More reasons to Vote Blue All The Way Through!
“… judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. ” This surge of idiocy really began with the appointment of Antonin Scalia and Clarence Thomas. Scalia was appointed by St. Reagan, Thomas by the corrupt G.H.W. Bush. Add in two more Bush appointees, Roberts and Alito and the stage was set for the three horse”people” of the apocalypse.
It’s what Republicans have longed for since Lincoln was shot. The Republican party is what Karl Marx warned the world about when he said capitalism will destroy itself from within. If what Peggy says is true, the great experiment in democracy will descend into its own ashes before the people rise up to reclaim their dignity.
Todd rails about the oligarchs destroying the country. Well, maybe he’s right after all. The SCOTUS we have in place now certainly wants the oligarchs to run every show. Not only are their majority opinions backward, scientifically indefensible, but also dangerous to the coming generations who will have to respirate the filthy air, drink the fetid water and eat the tainted food that the willy-nilly corporate entities will provide.
Add to all that the shameless and shameful corruption of at least two of these robed jokers (and their spouses) and we see why creatures like Steve Bannon can gain such attention – way more than just crackpot status.
So, is this election more important than any other in my lifetime? My first president was FDR. My first vote went to LBJ. But I never felt that voting was a desperate struggle for the very existence of the Constitution – for which I pledged an oath to defend. How can any of us defend the Constitution against these pathetic domestic enemies with just one vote?
This election is not between the GOP and DEMs. Those bases will vote. They total maybe 40% of eligible voters. It is the largest “party”, the more than 50% who are frightened, frustrated, having too much fun and who know little about how our democracy is supposed to work. It is a bit of 2008 all over again – they want POSITIVE CHANGE and the tops of the tickets aren’t offering that.
I’m afraid I have to disagree with Hubbell about one thing: corporate America was already getting what it wanted from the administrative state in Washington and 24 states in the union. It’s why Indiana is consistently the dirtiest state in the union while our Governor brags about being pro-business.
In my adulthood, our waters have become so contaminated we can’t even eat the fish from it. You would think all the conservatives who hunt and fish would go nuts in this state, but nope—nary a word. The Governor most guilty of this was Mitch Daniels, who invited the worst CAFO offenders to set up shop in Indiana. They were being kicked out of North Carolina and Europe.
In this Chevron Doctrine case heard by SCOTUS, guess who financed the Plaintiffs? It was Charles Koch. The case should have never risen anywhere since it comprised two fishermen who needed more resources to make it beyond the local courts. This is what the oligarchs have set up for themselves. The Federalist Society is a breeding ground for far-right judges who’ve taken positions nationwide and will provide smooth sailing to SCOTUS.
It’s been four years of poor decisions from SCOTUS during Biden’s term. Progressives have been pushing for an increase in the number of justices, but it’s yet to materialize. Why the delay? There’s not even a proposal on the table.
Do you honestly think it will happen in the next four years if Biden wins? LOL
Our two-party political system is as corrupt as it’s ever been. Einstein called us an oligarchy in 1949, and it has only gotten worse. Wait until Americans learn about how the oligarchs have used Zelenskyy to get what they wanted in Ukraine. It’s never been about independence or democracy—those are the Empire’s buzzwords. For those who forgot, Zelenskyy appeared in the Panama Papers and was owned by the wealthiest oligarch in Ukraine. 😉
The path a Biden exit with another candidate replacement – Kamela? Gavin? Gretchen? Tin Ryan? – is most likely not going to happen, and even if it did, is fraught with so many unanswered serious questions as to make it a virtual impossibility. My thought, and hope, is that while the “debate” was horrible, worse than I ever could have imagined, one candidate lying with almost every utterance while the other engaged in deer-in-the-headlight, muffled, too fast, unintelligible speech at almost every turn, it doesn’t change the facts that surround Joe Biden and his opponent. The Biden-Harris administration has designed and steered through Congress the most significant and comprehensive national legislation since LBJ, perhaps even FDR (I would suggest using JRB if it weren’t for his unfortunate middle name, Robinette). The American Rescue Plan response to COVID, the bipartisan Infrastructure Bill, the CHIPS Act, the Inflation Reduction Act, gun safety regulation, to name the major accomplishments. All of this resulting in nearly 11 million new jobs and the lowest sustained unemployment in 50 years. And on and on, accomplished by a caring and forward-looking administration, one that I for one do not want to see replaced by a self-described autocrat who will do everything he can to turn things back to the 1950’s, or earlier, with the help of SCOTUS. I am still convinced that if we all vote, we win. We outnumber those who support an end to democracy. The “debate” performance, no matter how awful, doesn’t take away from those incredible accomplishments, and more importantly, a loss in November effectively ends the great experiment in democracy we call America. Come on, EVERYONE ELIGIBLE MUST VOTE.
My guess? All six of them have been bought.
Charles Koch’s father would be very proud. The Koch boy(s) had/have been working relentlessly to “have it all,” as St.Reagan voiced it, and have persevered.
The Bush family , including Jeb, have royally screwed us Without Jeb, there would have been a Pres. Gore, and no line to the loud, false, and orange one.
I will not want to hear anyone wax poetic about the (finally) ended career of Mitch McConnell!!!!!!!
Enough gloom! Let’s all pledge to get the voters to the polls. We can still win this war.
CGH – so if “democracy is on the ballot” isn’t enough, what’s gonna do it?
The US used to lead the progressive world. Now, we are locked up not only geographically but temporarily.
The party of fiscal conservatism has shed its disguise, and underneath it, all along, was the party of aristocracy based on wealth and power redistribution up. When they realize they have killed the golden goose that creates all wealth, nobody will be available to fix the problems they made, and we’ll never catch up with the rest of the world again.
there are atleast 6 other stories about this subject,its flooded many left side news venues. seems the same opinion and analitics etc. someone forgot that both parties are some how,some way fronting this. corp demos seems to be silent,right wing outright liars and waving a false flag.while both passing bills legislation,state fed, local, and dumping vast amounts of suits and challenges and money into questioning any and all whatevers the right see as thier,screw it, its a goal to quash the laws and give free reign to the wall street greed,they have bought the system. though we seem the SCOTUS as taking bribes or, how their minds have decided in their own little world how it and they should be compensated for their opinion. congress failed in many ways of not upholding the regulatory part of any law, and allowed it to be challenged at a later date by merely not having penilties in the first place. instead it allowed a function to decide rather allow challenge in court. the failure isnt the SCOTUS,its the law makers themselves. when bill and commitees form ,the back room is the commitee. and when its floored for a vote, few challenges seem to stop the vote to pass the whatever. this scenerio has played out for 50 years. when parties come together to agree, its still avoids complete enforcements. now lean a court left and right and its left to them. the arguments are the facts, and theres no trump arguing them, its whats behind trumps curtian now. the 2025 project has amassed thousands of names and plans, no matter what court gets this challenge,its politically and the justices end game. we allowed this, we see the issue, now its time to question every SOB serving and get a straight face answer to past issues,and change the politcal state to where the majority makes the laws. this is probably the last vote we may ever make,that would change this. unless trump gets a total kick in the balls by us,and his behind the curtian mob, we may die just remembering where we went wrong.. best wishes.
The loss of Chevron deference is devastating. But it’s not surprising, I suppose. The right has always prioritized corporations and profits over health.
I think I’ll stop visiting the US altogether. For my health.
Todd: You said: “Wait until Americans learn about how the oligarchs have used Zelenskyy to get what they wanted in Ukraine.” If Trump wins you won’t have to worry about Ukraine very long, Trump and the Putin Puppets in Congress will throw Ukraine under the bus. Remember Zelensky refused to investigate Hunter Biden so he will receive no comfort from Trump or his buddies. The abandonment of Ukraine is one irrefutable reason to vote for Joe Biden.
We need to abandon Ukraine asap.
Genocide Joe and the Democratic Party intend on drafting Americans to fight the Russians.
Fighting on behalf of nazis and Bandarists is not worth it. We have already spent billions.
An old white-man wants to blow up the planet because he’s not long for this Earth.
You have actually made a good case in support of voting for Trump.
Ukraine, its azov battalion and its bandarists can all go to hell.
Question for the lawyers – if the wished for outcome of a Democratic sweep occurs, could Congress just push through legislation stating that all regulatory ambiguities shall be clarified by the appropriate agency in the Executive Branch?
Then they would still need to quit discussing the Marquess of Queensbury rules for this knife fight and enlarge the court. The McConnell Rule of Republicans can do anything, but Democrats must act like the Founders had imagined is balderdash, but too many Democrats bought in (or were bought).
https://www.youtube.com/watch?v=U-XXfex0_3Q
As you’ve referenced, Sheila, businesses which hate regulation will soon find they need it as much or more than anyone. Big Pharma has long lamented slow approval of new drugs, but those approvals may not come at all now that Congress will have to have the knowledge of research chemists to enact approvals. This court decision can paralyze innovations in medications.
Much of the litigation in America is from businesses suing other businesses for failure to honor contracts, faulty service or supplies, failure to meet important deadlines, failure to make payments, and other disputes of all sorts. Absent regulations, the most predatory businesses will have a field day at the expense of ethical and high quality businesses as well as individual customers whose recourse has mostly disappeared thanks to this Supreme Court.
Do we really think traffic and drivers and their passengers would be better off if we eliminated all traffic lights, no-passing zones, speed limits, drunk driving laws, drivers’ licenses, and auto insurance? Of course not. All of these protect all of us. Likewise, governmental regulations protect all of us, and if we don’t like them, we can elect different government officials to change them.
Unfortunately, this Supreme Court doesn’t feel THEY should abide by any regulations on ethics or acceptance of very expensive gifts from those having a financial interest in court decisions. So the Court is doing their best to eliminate regulations for everyone else too. Welcome to a business/customer world without traffic lights. Buyers REALLY beware.