The War On Government

One of the consequences of  the low civic literacy I keep complaining about is a widespread lack of understanding of  the importance of systemic problems. Our current media environment doesn’t help.

Let me give a few examples to explain what I mean.

The media covers our  election “horse races,” but largely ignores the systemic gerrymandering that precedes individual races and pre-ordains too many of their outcomes. The result is that the “win/lose” results don’t really reflect majority voter preferences, but that is rarely the focus of discussion.

The media routinely reports the results of U.S. Senate action, but has only begun to recognize the pernicious effects of the filibuster, which has changed that chamber from one operating on majority rule to a broken system that now requires a super-majority to pass even the most trivial laws.

Americans remain largely unaware of the undemocratic effects of the Electoral College –how that outdated system has operated to install as President candidates who lost the popular vote, and how it threatens to do so again.

As America’s governance has become ever more dysfunctional, recognition of those particular systemic flaws has grown, but–as we can see from reactions to the recent stream of radical Supreme Court decisions–while there is anger at the immediate and visible results, there is little recognition of the truly horrific systemic effects of those decisions.

The overruling of Roe is just one example. As I’ve written before,  the Court achieved that result by undermining an important doctrine–a doctrine that supports a number of other important liberties. The damage done goes far, far beyond the “headline.”

Similarly, the media has largely overlooked the truly breathtaking assault on American government represented by the decision in West Virginia v. EPA.  That decision limited the extent to which Congress can delegate regulatory decisions, and–together with other, less publicized cases–amounts to a war on government’s ability to protect the “general welfare.”

As Sam Baker recently wrote in Axios, the Court is moving to restrict the authority of regulatory agencies in the executive branch.

These cases may not always feel like blockbusters in isolation, but they can constrain federal power in ways that are almost impossible to reverse, with dramatic implications that cut across multiple policy areas.

Driving the news: Just in the past few months, the court …

Prevented the CDC from enforcing an eviction moratorium due to COVID.
Prevented OSHA from enforcing a vaccine mandate in workplaces.
Prevented the EPA from carrying out some of its most aggressive proposed limits on greenhouse gasses.
Some of those issues are bigger than others, but each of those cases raised questions about overarching legal principles related to executive-branch authority.

Taken together, it’s clear which direction things are headed — the federal government is going to be able to do a lot less than it has been able to do in the past.

At least three of the radical Justices are hoping to reinstate something called the “nondelegation doctrine” — a theory that Congress cannot delegate to agencies of the executive branch any of the powers the Constitution gives to Congress.

It’s not carrying the day right now, but at least three justices seem to want to bring it back. When the court struck down OSHA’s vaccine mandate, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said that even if Congress had expressly given OSHA the power to impose a vaccine mandate, that likely would have been unconstitutional.

In the 1800s, this debate was reasonable. Back then, We The People elected Congressmen (and they were CongressMEN) to make legal and regulatory decisions that were well within the competence of most lawmakers. In the 21st Century, life is considerably more complicated and a great many of those decisions require a degree of scientific, legal and/or medical expertise that we cannot reasonably expect from even our non-crazy lawmakers.

Forbidding Congress from delegating considerable authority over highly technical issues is a way of strangling the ability of government to act.

We can all point to regulatory decisions we dislike. We can argue that this or that rule exceeds the agency’s  grant of authority. But removing that authority–telling agency personnel that they cannot regulate environmental hazards, or require technical food and drug safety measures, or mandate certain responses to diseases and pandemics, etcetera, etcetera–is tantamount to telling the executive branch its authority doesn’t reach far beyond coining money and declaring war.

Focusing only on the “headline” results of these decisions–appalling as those obvious results are–blinds us to their systemic implications. This Court is coming for the underpinnings of federal governance.

Of course, if climate change destroys the planet, it may not matter…..

 

22 thoughts on “The War On Government

  1. “Forbidding Congress from delegating considerable authority over highly technical issues is a way of strangling the ability of government to act.”

    Trump plopped his considerable backside in our Oval Office and began issuing Executive Orders and appointing his cronies-of-the-day to high level positions to see that they were carried out. Many were to stop the legally set-in-place processes and procedures to carry out the work of government which had worked, with the expected glitches and arguments as part of governing, and here we are! President Joe Biden’s attempts to repeal what can be repealed, end what can legally be ended and start needed repairing and replacing the “deconstruction” of what used to be the United States government are thwarted at every turn. And we did remain United even under the opposing parties we voted against but lost…legally but not ethically due to the Electoral College. President Biden is upholding his Oath of Office to protect democracy, Rule of Law and uphold the Constitution; doing everything that is ethical, moral and legal takes more time than ignoring and breaking laws, rules, ordinances and following proven procedures to govern. This is costing him in the polls; it didn’t take long for Americans to adapt to Trump’s instant gratification, or throw your plate of food against the White House walls, which appeared to the unthinking as progress. He surrounded himself with as many American flags as fit on any stage from which he was speaking and had his MAGA hatted and shirted supporters behind him waving their professionally made signs handed to them before they were seated. Knowing Americans were distracted by shiny things, he polished up his hair, spray-tanned his face and yelled the loudest.

    His techniques appeared to dump the worst of the Climate Change and Global Warming warnings on us along with the Covid-19 Pandemic all at once…all of which rages on. He has supported Herschel Walker in Georgia to explain why the EPA needs to be abolished; not even Trump can control the air but he can and has explained the problem. My personal war on government is to drop memberships in all human rights organizations I have belonged to for years; I am using what little I can when I can to support Democratic candidates here and in other states because the war on government is raging from the ground up and cannot be stopped from the top down.

  2. The single most important Supreme Court case entered into the docket on June 30 is Moore v. Harper out of North Carolina, which will test the totally made up doctrine of “independent state legislature” to determine if NC’s legislature can overturn a decision made by their state Supreme Court to reject a set of election maps that were egregiously gerrymandered in favor of Repugnicans. The doctrine, which has NO foundation in the Constitution or related historical documents, was cited by Justice Rehnquist in Bush v. Gore in 2000 and Trump’s lawyers tried the same in 2020 to reject electors in several swing states.

    So by June 30 of next year we’ll learn if we even need to bother with any more elections after 2024, as it will have already been decided by SCOTUS. If Dems, as expected, are too wish-washy and mealy-mouthed to use this as as a 2022 campaign issue, especially in the swing states, then we can stop whining about losing our Republic – the Dems will have given it away.

  3. Actually AgingLGirl,

    You hit the nail on the head!

    The president could do a lot of things, he could ban assault weapons, he could either dismantle the supreme Court or pack it! He could enforce environmental laws that are being assaulted by special interests. All of this and many many other things can be lumped under the general welfare of the society. We could throw healthcare, housing, food equity, and others under that umbrella of general welfare also.

    He could write executive orders for much of this, of course it would go to the courts, and there would be a stay put on his actions. That’s when he ignores the courts and enforces the laws on the books. Enforces settled law. If the supreme Court which is looking to exert more control over the executive Branch is shut down by the executive branch, then things could lie under the control of district courts? Or, all habeas corpus could be suspended until the crisis has past.

    It would be a battle, but, isn’t that what’s happening right now? An insurgency of a fanatical minority compared to the citizenry as a whole? Foresight should be something that those who want to lead possess. Unfortunately, so many are looking in the rearview mirror while attempting to drive or move forward. And, as you know, that is a recipe for disaster.

    The time to force an inspired debate is here now, not later..

    Biden is currently nibbling around the edges so to speak, but he needs to take the Giant leap. He could enforce and prevent the sale of assault weapons plus the other things listed above, and, it would be a fight! Isn’t that the whole point? Get it all out there, do the right thing, but it takes two to tango. So, if your partner refuses to tango, better start break dancing which doesn’t need a partner! Because it’s time to do some breaking.

    And, one more thing, build that doggone pipeline from the mouth of the Mississippi and funnel all that fresh water going into the Gulf westward. If the Simi valley runs out of water, hungry people will burn the country to the ground.

  4. john p sorg; an excellent description of a Dictatorship!

    OK, another of my movie quotes, “What we have here, is a failure to communicate.” And who we are trying to communicate with is a multitude of Archie Bunker mentality Republicans; we will possible forever be on The Meathead’s losing side of any argument.

  5. The loss of Chevron Deference would be catastrophic, especially for the EPA. (My understanding is that the latest decision, while horrible, does not get rid of this doctrine, although Gorsuch has repeatedly written of his desire to do so.) Without this doctrine, the EPA (or any agency) would need congress’ approval for virtually any regulation that wasn’t explicitly described by congress beforehand. The point is that congress does not have the expertise of the EPA, and must delegate some decision-making to the agency. Otherwise, you end up in a situation where some company (say, Dupont) makes and uses some terrible chemical in their product (say, teflon) and the EPA would not be in a position to say anything about it.

    It’s almost ridiculously stupid to think that agencies can work effectively without this doctrine. But that’s the point, too; people like Gorsuch don’t want the regulatory agencies to work effectively. Companies wouldn’t be able to make as much money! Think of the children!

  6. Dave Crow wrote this on Twitter yesterday:

    “The entire political/media class exists for this purpose: to keep the grubby little mitts of the unwashed masses far away from the true levers of power.”

    Period.

    Everything else is fruitless rationalization. It’s all a show. Anyone glued to the TV to watch the 1/6 committee meetings is watching just another version of reality TV but it’s still a farce. If you watch WWF, and believe it is really wrestling, than politics and media is for you. Your local council are rubber stamps for decisions already made.

    Should you want another view, Caitlyn Johnson writes:

    “The empire relies on false political dichotomies like Democrats vs Republicans to keep everyone fighting over issues which don’t affect the functioning of the empire so the machine can trudge onward uninterrupted by the local riff raff. That is the entire job of those parties.

    The mainstream media exist to keep everyone spellbound by those false dichotomies on the level of discourse and debate. They manufacture culture wars which split the populace in half over an issue which doesn’t affect the empire, then continually feed into that debate.”

    https://zero-sum.org/political-false-dichotomies-notes-from-the-edge-of-the-narrative-matrix/

  7. John,lookin quite dignified sir..(pic)

    as ive seen over the last 40 years,were to busy workin and makin credit payments our national pastime. the fact the total time consumed by every American everyday is to pack as much whatevers into their daily whatevers. who has time to read anymore. flip the i phone on and its all there,every aspect of your life as you,choose. since its inception,(i phone) the fact that you can now manage your life in apps and surfing any genre any where, and best of all, press a button and lift the blinds..the boss can expect better performance from your minutes at work to your kids need to knows,without your presence.( the right wing of demands loves that one)
    mandate the need for enjoyment,( and many in the shrink world would study) at any time.(even when driving a few tons of iron at 70) did you ask someone what they think about? maybe then they would look it up, if it fits into their daily needlessness. civics id bet bubba hasnt a clue if you asked. seem city folk who see education beyond the needs of minal life,have the clues, well actully they were educated for the world,whereas, the right wing community are agast that such studies even merit discussion. (pick em as they,want them,and demand a church to approve, did we miss that one today) i was graded on my civics when i was in second grade and up til i left the NY/NJ metro area in 1968.4 check offs,satisfactory/unsatisfactory.. i remember them well..
    should the supreme court rule on educating for the betterment of America? they would have to dissent..

  8. JoAnn, the second paragraph of your first post today is a perfect summary of the past six years! It should be front page reading on every newspaper and social media platform.

  9. Write a new constitution? No way, Jose or AgingLGirl! You have to recognize who would have the power at any constitutional convention and right now that would be the right wing crazies. We’d end up with a constitution the requires every citizen to own at least one gun, makes Christianity the “official religion,” eliminates the income tax, eliminates Social Security, Medicare, and Medicaid and ban the government from providing health care, requires the use of petroleum powered vehicles, and a whole host of other unsavory measures. Be careful what you wish for!

  10. The Constitution set forth the design of self-government accurately described as a democrat republic. The Republican strategy since Reagan has been to seize control of the republic at local, state and federal level while Democrats rant about losing our democracy. The GOP platform has erased language of preserving democracy and replaced with preserving our republic. In the mean time, well placed GOP operatives have been playing the Supreme Court to support the future of ‘the republic’. The media I read over time has reported nuances of both strategies whether we like it or not. What happens occasionally is some erudite columnists/reporters summarize the connected implications of loose end issues that give us insight into likely scenarios going forward. Without the latter, general public fatigue sets in generating ambivalence and why baseball is a favorite past time.

  11. Somewhere down in the roots was “the rule of law”…now long gone. Few “laws” are passed in Washington due to partisan politics. Those that are are deliberately “loose” so that they can be “worked around” or “taken advantage of” by the rich/powerful.

    The Former and many other politicians clearly break laws and are not held to account.

    The “wild west’ of old time TV is now the “wild US” with no ultimate abitur. Could this be the disaster spawned by a larger culture of “anything goes” as long as it is for me and I can get away with it?

  12. Some people believe that every else’s jobs and lives are easier than theirs. Others may believe that running a business is hard but running a country is easy. All of those are delusions that we make to rationalize our lives by declaring ourselves worthy.

    The truth is that the nature of lives and responsibilities aren’t on a scale from hard to easy but comfortable to challenging. Or, put another way, from internally focused to externally focused and some are very comfortable taking on huge challenges impacting millions of people but those people are very few and far in between. For one thing, lives, to be rewarding, have to find a balance between internal and external focus. People willing to take on hard jobs and lives have to find ways to protect themselves from imbalances in their own lives and disagreements and failures outside of them.

    All of that is to conclude that with the number of humans in the world, which is still rapidly growing, and with all of the technology we have developed to reduce the limits of interacting with far-flung people and places, we have made life so complicated and challenging that we may well be exceeding our capability to run our show in some cases individually and in others collectively.

    What will save us if that is to be our future? In my opinion, the answer is diversity in every dimension. Our very natural uniqueness from all being born with and into never before matched conditions. I marvel at how it’s possible to have never encountered another person who looks like me. What’s much more important is that is also true of thinks like me, who share my opinions and knowledge and have the same faith that I do to explain what is beyond knowing. But, for that to save us we need the added dimensions of empathy, respect for differences, and collaboration because, in the end, we are in this together.

    I’ve always been very lucky to have organs that are as different as night and day but they are very happy with each other. They all both stay in their lanes and connect to keep each other in balance. My brain is not jealous of my heart and my liver and stomach happily soldier on doing what they are designed to do and assuming that other organs will do their jobs as well.

    Why does all of that seem to get lost on the other side of my skin?

  13. JoAnn,

    You keep saying the same thing, if our so-called founders didn’t see the need for the president to be able to do these things, then they wouldn’t have included that provision in the constitution!

    It will either happen from the left, or, the right! Whoever decides to wheel that power to restore or destroy!

    Martial law has been declared nine times since World War 2! Five of those times were by presidents enforcing desegregation! So, was that a dictatorship? Or, was that the right thing to do? I’m leaning towards, probably the right thing to do!

    Gridlock has been here for decades, and nothing ever gets accomplished except the chipping away of Civil and Human Rights in general. Civil rights for all, equality for everyone! Human rights, the right to food, the right to respect, the right to shelter, the right to love, the right to security! Human rights and civil rights are indelibly connected throughout history, when Human Rights are trampled on, Civil Rights are just words, useless penned letters! Look at the various proclamations throughout history, from the beginning of the last millennium all the way till today, there have been various declarations concerning the rights of man. Human rights! Civil rights! So obviously there’s always been a problem with men or humankind trying to deny other human beings their basic guaranteed rights as free moral agents! Now, we would have to say or ask the question, who guaranteed those rights? Morally, the collective conscience realizes human rights are part of being human! To protect those rights for everyone. After all, we don’t give human rights to animals do we? Scripturally, the Old testament and the new, made it clear, to take care of the widows, take care of the orphans, the parable of the good samaritan, the respect for foreign residents, and the protection of foreigners under the law at the time. Fair treatment of those accused of crime, and on and on! These very things were indoctrinated into mankind’s laws through the millennia.

    Historically, this time is like none other. Communications, funding networks, clandestine operations, conspiracies, all flooding the entire planet in a couple of seconds through social media and it’s symbiotic news spreading accomplices.

    And, although, the founders definitely did not allow all human rights, look at the natives of this country, look at the African slaves of this country, look at the treatment of foreigners in this country, but the provision was put in the constitution! If all else fails, there is a way. That’s why it’s there! And, if one side doesn’t use it, the other side will. One will promote an equal footing for all, the other will promote segregation and false Theocratic doctrine! Self-determination is a very desired commodity, but whose self-determination is appropriate? Is the self-determination to acquire human rights appropriate? Or is self-determination to deny everyone those rights appropriate? Left or right, up or down, whoever does it first, will point the direction of this Society to the north, or to the south!

  14. Jack,

    Thanks for the compliment, lol!

    You’re comment today was very poignant. And it shows how much a man can put his finger on the pulse of a current point in time!

    Laziness or, sloth as it says in scripture, is infecting so many humans! They don’t want to use their brain for self-determination, they want someone to tell them what that determination is according to whatever post they decide to Hitch their horse to!

    They like their self determination to be determined by someone else! That in itself is ironic concerning all the screaming about the second amendment and freedom. There really is no freedom, they’re all following someone else’s predetermined plan to acquire power and authority over anyone else’s self-determination. Go figure!

  15. I just want to commend all of you posting today that your comments are “as unique as breakfast
    tacos”

  16. A break in the January 6th Committee hearing; watching the insanity which transpired leading up to the 2020 presidential election, what ensured with Trump’s mafia minded supporters, elected and appointed by him to overturn the election, I realize it is the basic strength built into the Constitution of the United States of America which helped democracy survive today to continue our fight. It is the strength of the Constitution that has brought about the Supreme Court’s determination in recent months to overturn as many of our laws and bills as quickly as possible before these mid-term elections and the 2024 election before they can lose their NRA support and religious majority. Those who want to rewrite the Constitution to fit their beliefs are operating under the premise of accepting defeat and changing the rules to fit the circumstances we are currently living under. We are in a “fight or flight” situation and you are opting for “flight”.

  17. For the trolls here: Way down South, we just say, “Bless your hearts!” It’s said with all the tongue-in-cheek we can muster. It’s really dark where you are. We know who you are, we know you are sad, even pitiful, cases, and we shake our heads in disbelief and utter our now-famous phrase. So, “Bless your hearts.”

  18. I have long believed that a strong stream within the Republican Party wanted to render both the labor unions and the government powerless. Then, the “worthy people”, AKA robber barons, could do whatever they wished with total freedom. Another stream were Puritans who wanted to impose their particular view of morality on everyone else. Those streams seem to be most of what is left of the GOP.

    Of course, that great “Democrat”, Thomas Jefferson had the idea of an American rural democratic republic. Everyone (free, white, and male) could own a self-sustaining plantation, on the vast swaths of land we could steal from the people who already lived there. I suppose that the size of the plantation would be based upon the number of slaves that you owned. Since your plantation would be self-sustaining, and you were spatially separated enough that pouring raw sewage into the river wouldn’t harm your neighbor too much, it would be like utopia.

    Here’s an idea that should be popular – Let’s declare every regulation based upon The Pure Food and Drug Act of 1906 unconstitutional. Big Pharma and Big Agriculture could then sell anything and Congress could legislate against the little guys who might compete.

    Justices Thomas and Alito would love it.

  19. Steady pressure over decades to reduce all taxes, or keep them stable and let inflation reduce the load on taxpayers is a key Republican tactic to strangle the federal (and in Indiana, state and county) government. Remember “starve the beast?” The Wikipedia article coming up from a Google search on the phrase is interesting reading.

  20. These ‘originalist’ conservatives are exactly the kind of activist judges they have disdained for decades. If they are not careful, they’ll convince more folks that
    enlarging the court is a good idea.

Comments are closed.