Tag Archives: Trump Administration

Be Careful What You Wish For…Chevron Edition

Among the Supreme Court’s numerous retreats from what had long been considered “settled law” was a ruling that received relatively little publicity. The general public can be forgiven for failing to realize just how startling–and wrongheaded–the Court’s abandonment of something called “Chevron deference” really was, but the legal community certainly understood the decision as a monumental retreat from precedent and respect for expertise–not to mention an unwarranted increase in judicial power.

Chevron deference was shorthand for a judicial doctrine that has been applied for 40 years in over 18,000 decisions to situations where Congress sends ambiguous directions to executive agencies staffed with people who are experts in the particular area. That ambiguity is necessary; Congress isn’t equipped to determine the proper levels of contaminants in water or to identify carcinogenic chemicals–and even if such specifics were passed, they would be incredibly difficult to monitor and update as technical knowledge advances. 

Recognizing that practical reality, Courts have deferred to agency interpretations/clarifications of those ambiguities, recognizing that judges–like Congresspersons– generally lack the specific technical knowledge required.

The required deference could certainly be overcome. If a plaintiff challenging the agency’s interpretations provided evidence that agency interpretations were unreasonable, Courts could–and did–overrule them. Deference simply required the judicial branch to acknowledge–and respect– the existence of specialized subject-matter expertise, and to recognize that the possession of superior legal knowledge does not make the judicial branch all-knowing.

As an article from Pro Publica reported,

That doctrine, known as Chevron deference, was named after the 1984 Supreme Court case in which it emerged, and it offered an answer to a recurring question: What happens when Congress passes a law granting power to a federal agency but fails to precisely define the boundaries of that power?

In such situations, the doctrine of Chevron deference instructed federal judges to rely on the interpretations made by federal agencies, as long as those interpretations were reasonable, since agencies typically have greater expertise in their subject areas than judges. The Loper Bright decision erased that, commanding federal judges to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

Legal scholars condemned the Loper ruling as yet another departure from stare decisis–respect for precedent–and as an unwarranted departure from a reasonable balance between executive and judicial authority. Those intent upon reducing federal authority–and regulations–cheered it.

But it turns out that the Chevron decision might take its place alongside Dobbs, as a judicial overreach that ideologues may regret. (Dobbs was largely responsible for the non-appearance of the anticipated “Red wave” in 2022.)

A recent article from Stateline suggests that the ruling will allow Blue states to more effectively resist Trump Administration policies.

A major U.S. Supreme Court decision this summer was hailed as a conservative court’s broadside against a Democratic administration, giving red states more backing to delay or overturn policies they don’t like, such as transgender protections and clean energy goals.

But the ruling in the Loper Bright case, which granted courts more power to scrutinize federal rules, can go both ways. Experts say it will likely give blue states more leeway to attack any forthcoming policy changes from President-elect Donald Trump — ranging from immigration and the environment to Medicaid and civil rights.

Lawsuits already are being planned in many states. California is holding a special session to set aside money for legal fights, and Connecticut, Massachusetts, Minnesota, New Jersey and New York also are considering legal strategies

Democratic governors in Colorado and Illinois formed a coalition in November to “fortify essential democratic rights nationwide.”

In effect, the ruling opens more federal rules to those court challenges. Blue states now have a new weapon to fight conservative federal rules on issues such as immigration, climate change, abortion access and civil rights….

Most experts see the change as an obstacle to a new Republican administration looking to make sweeping changes but lacking enough support in Congress to pass large-scale legislation. Any proposals restricting access to abortion or attempting to dismantle the Affordable Care Act or Medicaid expansion will be more complicated, said Zachary Baron, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute.

Our fractious, gerrymandered Congress hasn’t approved a major immigration or environmental law for decades. That Congressional inability to legislate “has forced both Democratic and Republican administrations to change policy through either executive order or federal regulations that can now be more easily challenged by hostile states in the courts.”

The Loper decision hobbled some of the Biden Administration’s regulatory efforts. The linked article points to a number of ways in which it will also complicate–and prevent–measures threatened by the incoming Trump administration. 

Sauce for the goose……

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The Best People

Among the many boasts we’ve become accustomed to hearing from Donald Trump is his repeated insistence that he hires “the best people.” I thought about that boast in the wake the Vice-Presidential choices made by Trump and Harris: JD Vance is one of the most disliked VP candidates of all times, while the selection of Tim Walz has been greeted with widespread enthusiasm.

When it comes to fitness for office, Vance has almost no experience in elective office, while Walz has served in Congress and as Governor of Minnesota. (Even Sarah Palin–to whom he is often compared–had more governing experience than Vance.)

Trump’s choice of an unsuitable running mate is not an aberration. As a recent article in The New Republic put it, the selection confirms that Trump picks the very worst people. The article reminded readers of the many “incompetent and corrupt” members of his administration:

Health and Human Services Secretary Tom Price, who resigned after squandering hundreds of thousands of taxpayer dollars on private travel; Environmental Protection Agency Administrator Scott Pruitt, who resigned “after being embroiled in one ethics controversy after the next,” as CNN put it; Interior Secretary Ryan Zinke, who “resigned under the weight of more than a dozen federal investigations into his actions,” according to The Washington Post (Zinke is back in Congress, of course, where he is speculating that the recent attempt on Trump’s life was part of a government “plot”); Mike Flynn, the national security adviser who lied to the FBI in the Russia probe and went to jail (Trump pardoned him); swamp thing and Trump campaign chief Paul Manafort, who went up the river for tax and bank fraud (Trump pardoned him too); alt-right guru Steve Bannon and trade troll Peter Navarro, who were convicted of contempt of Congress; would-be Batman villain Roger Stone, who was convicted of lying to Congress (Trump commuted his sentence before, ultimately, pardoning him too).

The list went on. And on. And Trump seems incapable of learning from his mistakes. (Of course, he is also incapable of admitting that he makes mistakes..)

Having run the administration with the highest turnover rate in history presumably gave Trump plenty of experience to avoid making the same mistakes, but it’s not like later-term personnel were much better than their predecessors in his own estimation. John Bolton, Trump’s third national security adviser, was a “dope” who “Never had a clue, was ostracized & happily dumped.” Mark Esper, Trump’s last confirmed defense secretary, was “weak and totally ineffective”; Attorney General Bill Barr, who parted ways with Trump only after belying his claims of widespread 2020 voter fraud and later said that Trump “shouldn’t be anywhere near the Oval Office,” was “Weak, Slow Moving, Lethargic, Gutless, and Lazy” (though once Barr endorsed him this year anyway, the magnanimous ex-president retracted the “Lethargic” label).

There is no love lost between Trump and those who entered and left through the revolving door that was his chaotic administration. CNN has identified twenty-four members of that administration who are warning voters against a repeat. Even Mike Pence–sycophant extraordinaire–has refused to endorse him.

His first secretary of defense, James Mattis: “Donald Trump is the first president in my lifetime who does not try to unite the American people – does not even pretend to try. Instead he tries to divide us.”

His second secretary of defense, Mark Esper: “I think he’s unfit for office. … He puts himself before country. His actions are all about him and not about the country. And then, of course, I believe he has integrity and character issues as well.”

His chairman of the joint chiefs, retired Gen. Mark Milley …. “We don’t take an oath to a wannabe dictator. We take an oath to the Constitution and we take an oath to the idea that is America – and we’re willing to die to protect it.”

 His first secretary of state, Rex Tillerson: “(Trump’s) understanding of global events, his understanding of global history, his understanding of US history was really limited. It’s really hard to have a conversation with someone who doesn’t even understand the concept for why we’re talking about this.”

His presidential transition vice-chairman, Chris Christie: “Someone who I would argue now is just out for himself.”

His second national security adviser, HR McMaster: “We saw the absence of leadership, really anti-leadership, and what that can do to our country.”

His third national security adviser, John Bolton: “I believe (foreign leaders) think he is a laughing fool.”

There are others quoted, but this sample is representative.

So much for the hope that this buffoon would be restrained by “adults in the room.

The adults have all run for the hills.

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The Hits Keep Coming…

A few weeks ago, I asked one of my sons if he’d read my blog that morning; he said he hadn’t, because most of my posts depressed him. I completely understand that reaction; I have begun “skimming” the headlines rather than reading the “doom and gloom” reporting and punditry that constitutes the overwhelming majority of items delivered to me each morning.

I’m convinced that–if one can take a sufficiently “removed” perspective–there is evidence  that Americans are moving toward a more inclusive, democratic future. But the day-to-day reporting doesn’t reflect broad social movements–for one thing, bad news and dire predictions are today’s iteration of the media’s longtime devotion to “if it bleeds, it leads.” Negative and shocking stories capture eyeballs, and it isn’t only Facebook that focuses on “engaging” readers.

It’s hard to keep a balanced view–let alone a positive one–when we hear more every day about the extent to which (mostly Republican) officeholders have descended into behaviors that range from financial self-dealing to unashamed bigotry. Two recent examples are illustrative.

Propublica has reported

Former President Donald Trump empowered associates from his private club to pursue a plan for the Department of Veterans Affairs to monetize patient data, according to documents newly released by congressional investigators.

As ProPublica first reported in 2018, a trio based at Trump’s Mar-a-Lago resort weighed in on policy and personnel decisions for the federal government’s second-largest agency, despite lacking any experience in the U.S. government or military.

While previous reporting showed the trio had a hand in budgeting and contracting, their interest in turning patient data into a revenue stream was not previously known. The VA provides medical care to more than 9 million veterans at more than 1,000 facilities across the country.

Patient data–which veterans have every right to expect will be subject to doctor/patient privacy rules– could be sold to major companies for hundreds of millions of dollars. The trio–described by Propublica as “the Mar-a-Lago crowd”–obviously knew their plans were improper. One of the emails obtained by the publication demonstrated that the group took efforts to conceal its activities. It read “We are still unsure what can be put in emails and what to discuss verbally,”

New evidence that the former administration was essentially a gang of grifters won’t surprise anyone who isn’t a brainwashed MAGA partisan. Despicable as such behaviors are, theft and self-dealing are longtime human transgressions, and understandable albeit reprehensible. Less comprehensible is the GOP’s eagerness to flaunt their bigotries.

As the Religion News Service has reported,

The Republican members of the Senate’s Small Business Committee have failed to attend confirmation hearings for Dilawar Syed, the Biden administration’s pick to be the deputy administrator of the Small Business Administration.

Syed’s first confirmation hearing was scheduled for April 12, but on that day and three subsequent dates — the latest on Sept. 21— the Republicans have effectively boycotted the nominee, who, if confirmed, would be the highest-ranking Muslim in the administration.

 A number of religious groups, including African American Ministers In Action, Sojourners, the Reconstructionist Rabbinical Association and the National Council of Churches, have  accused the GOP of “anti-Muslim animus” for its opposition to Syed, whose nomination is also supported by the U.S. Chamber of Commerce.

A report from Huffpost notes the changing excuses for opposition to Syed, who is clearly well-qualified for the position.

He is a businessman ― currently president and CEO of Lumiata, a health care analytics company ― who has also stepped into public service roles in both California and at the federal level, leading engagement with small businesses after the passage of the 2009 stimulus package for President Barack Obama’s administration. He is also co-founder of AAPI Victory Fund, a super PAC dedicated to mobilizing Asian American voters.

When Jewish organizations demonstrated the falsity of accusations of anti-Israel activity, Republicans shifted their argument…to Planned Parenthood.

Instead, they all pointed to a joint statement saying they will oppose filling the deputy SBA job until the Biden administration commits to taking back loans given to some Planned Parenthood affiliates under the Paycheck Protection Program. The loans, handed out during President Donald Trump’s administration, were meant to help small businesses keep employees on their payroll during the pandemic…

“It has been a successive series of things. And if one didn’t stick, they found another one. And if that didn’t stick, they found another one,” said Shekar Narasimhan, a friend of Syed’s and co-founder of AAPI Victory Fund.

It is glaringly obvious that the Republican Senators’ real objection is that Syed is Muslim.

It isn’t just the ever-growing looney-tune caucus composed of the likes of Marjorie Taylor Greene and Louie Gohmert. The once Grand Old Party is currently composed  almost entirely of conspiracy theorists, grifters and bigots.

it can’t crash and burn soon enough.

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Elementary Ethics

Yesterday, I posted about generalized social trust–its importance, and some of the reasons for its recent decline. Today, I want to focus on the role played by ethical behavior–in this case, the lack of ethical behavior–in the distressing and accelerating erosion of social trust.

One of the most obvious ethical principles is avoidance of conflicts of interest. I believe it was John Locke who noted that a person (okay, back then he said “a man”) could not be the judge in his own case, and that is really the heart of the rule against conflicts. Elected officials are not supposed to participate in decisions that will affect them personally and directly.

If a state official approves a purchase of land for a highway, and that highway will run through land owned by members of his family, that’s a conflict of interest. If a United States Senator relies upon information not yet shared with the public to sell stock holdings before the news gets out, that’s a blatant conflict. (And yes, Senator Perdue, we’re all looking at you.) When a President refuses to divest himself of business interests that will be directly affected by his decisions in office, that’s a huge departure from ethical behavior.

It is hardly a secret that the Trump Administration has been brazenly unethical. Last year, Pro Publica noted that the administration itself had reported (quietly) numerous ethical breaches. The report noted that President Trump’s ethics pledge had been considerably weaker than previous pledges, but that the government ethics office found violations of even those watered-down rules, particularly at three federal agencies: the Environmental Protection Agency, the Department of the Interior and the National Labor Relations Board.

Just one example: At the NLRB, Republican board member William Emanuel improperly voted on a case despite the fact that his former law firm, Littler Mendelson, represented one of the parties. (The firm represents corporations in labor disputes, and he also voted to eliminate regulations protecting unions.) Conflicts at the EPA have been widely covered by the media; numerous EPA officials chosen by Trump have come from fossil fuel companies and/or the law firms that represent them, and those officials have rolled back nearly 100 environmental regulations.

Then there’s former Interior Secretary Ryan Zinke, who is being investigated by the Justice Department’s public integrity section over allegations he lied to his agency’s inspector general’s office. There are also two separate probes by the Department’s inspector general about Zinke’s ties to real estate deals in Montana and a proposed casino project in Connecticut. 

As for Trump, there is at least one lawsuit charging violations of the Emoluments Clause still working its way through the courts–although the current composition of the Supreme Court doesn’t bode well for the outcome. 

The White House has refused to impose any sanctions for officials found to have committed ethical violations. That–as observers have noted–has sent a message of tacit approval, not just to the officials violating ethical standards, but to citizens who are aware of the breaches.

It isn’t just government. Cable news companies and social media giants routinely behave in ways that violate both journalism ethics and strictures against conflicts of interest. Facebook employs a rightwing internet site, The Daily Caller, as a “fact checker” despite the fact that the site is supported financially by the GOP. A story originally published by Salon reports that “The Daily Caller has taken tens of thousands of dollars to help Republican campaigns raise money while performing political fact-check services for Facebook.”

The Caller, a right-wing publication co-founded by Fox News personality Tucker Carlson, has also since 2016 sent dozens of emails “paid for by Trump Make America Great Again Committee,” a joint fundraising vehicle shared by the Trump campaign and the Republican National Committee, according to Media Matters.

Media Matters also revealed that The Daily Caller has sent sponsored emails on behalf of a number of Republican candidates this year. Media Matters posted screenshots of the emails, from Sen. Lindsey Graham, R-S.C; Rep. Jim Jordan, R-Ohio; the Senate Conservatives Fund; and the Bikers for the President PAC.

Asking the Daily Caller to fact-check political posts is like asking a wife-beater to evaluate spousal abuse cases.

When ethical principles are routinely flouted by a society’s most powerful institutions, is it any wonder that Americans don’t know who or what they can trust?

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Dishonesty And Healthcare

As the blizzard of political television ads becomes ever more annoying–and less informative–one thing about them has become very interesting. Even Republicans who have previously made it clear that they don’t want government involved in healthcare are airing advertisements touting support for Medicare and willingness to protect pre-existing conditions.

I’ve been particularly struck by the U Turn in Indiana’s Fifth District, where a radically-reactionary, pro-Trump Republican noted for opposing “socialism” (which she has defined to include pretty much anything done by government) has begun running commercials supportive of Medicare and coverage of pre-existing conditions. Evidently, her polling has overcome her previously expressed belief that government should have no role in health care.

She’s not alone.

When the Affordable Care Act (aka Obamacare) passed, several Republicans went on record with their concern that its trajectory would mirror that of Medicare and Medicaid: despite initial resistance, the public would come to expect/demand/approve of the program. Survey research has confirmed those fears, which is why GOP officeholders continue to pretend that they will protect access to healthcare at the same time as they are feverishly working to eviscerate it.

The Brookings Institution recently published a report detailing six ways Trump has sabotaged the ACA.The report began by stressing that its authors did not use the term “sabotage” lightly.

For analytic purposes, the term “sabotage,” should not be used lightly. Presidents upon taking office typically have priorities that trigger executive actions strengthening some programs while weakening others. The losing programs often face resource reductions, pressure to deemphasize certain goals, directives to alter their administrative approaches, and other measures that can undermine their effectiveness. In doing so, a president often pays lip service to the program, claiming it has been “modernized” or otherwise improved. In contrast, Webster’s defines “sabotage” as efforts to foster “destruction and obstruction” and to “cause the failure of something.” In the context of the administrative presidency, it reflects a commitment to program emasculation and termination through executive action. As such, it sharply departs from the constitutional requirement that the president “take care that the laws be faithfully executed.”

There were six actions detailed in the report.

1) The administration dramatically reduced outreach about, and opportunities for enrollment in, the ACA’s insurance exchanges. The administration sharply reduced support for advertising and exchange navigators and reduced the annual enrollment period to about half the number of days. 

2) Together with Congressional Republicans, it reneged on commitments to private insurance companies. Those insurers had been offered various subsidies that reduced the risks of participating in the exchanges. The GOP failed to honor those commitments.

3) The administration has constructed what the report calls “off-ramps to cheaper, lower-quality insurance.” One goal of the ACA was to improve the quality of health insurance by specifying essential benefits, guaranteeing coverage of those with preexisting conditions at reasonable rates, and prohibiting insurers from imposing certain spending caps. The Trump administration expanded access to coverage that was cheaper because it didn’t meet these standards and that siphoned off the healthier enrollees whose participation is needed to make the ACA work.

4) It allowed–indeed, promoted– a variety of state waivers that decreased ACA enrollments and undermined its regulatory structure.

5) It discouraged legal “aliens” from enrolling in Medicaid. In a particularly evil move, Homeland Security promulgated a “public charge” rule authorizing officials to treat Medicaid enrollment as a negative factor when reviewing the requests of legal non-citizens to extend their stays or change their status (e.g., from temporary to permanent resident).

6) And then there’s the existential threat. The Trump Administration brought the lawsuit that is now pending at the Supreme Court, attacking the constitutionality of the ACA. If that suit is successful–despite a legal argument that has been widely characterized as ridiculous, despite its endorsement by an appellate court composed of Trump-appointed judges– millions of Americans will lose access to health care.

As a student once reminded me, the United States doesn’t have a health-care system; we have a health-care industry. As a result, millions of Americans remain underinsured or completely uninsured, other millions are bankrupted each year by medical costs, and our health outcomes are among the absolute worst in the developed world. 

Deeply dishonest political rhetoric to the contrary, the current Republican Party wants to keep it that way.

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