As we all wait, with mounting dread, for the Supreme Court’s decision on Donald’s ludicrous claim of absolute immunity – it’s due Monday, at the last possible minute, just to prolong the agony (and possibly to buy Trump more time) – the billionaire’s lap dogs of the Court’s “conservative” majority have seized the opportunity to realize what was once merely Steve Bannon’s right wing fever dream of “dismantling the administrative state”. I wrote a few days ago about the Chevron Doctrine, and how a case was then before the Supremes on whether it should be overturned, brought by an advocacy group funded by America’s 0.0000000001% oligarch coalition. I don’t want to reiterate it all here, but you can read about it in this prior post:
In brief, the case that has now been decided considered whether a decades-old rule governing judicial review of regulatory decisions, first articulated in the 1980s by SCOTUS in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., should be overturned. Back then, the Court determined that the best approach was to observe what we were taught in law school to call “curial deference”, that is, the principle that when the relevant regulatory agency (like the EPA, FDA, or SEC etc.) applies its expertise to fill in the blanks left by often vague legislative policy prescriptions, the courts weren’t a suitable venue in which to second-guess them. Providing they were acting reasonably, and within their authority, judges, said the Court, had no business overruling their decisions, particularly when the matters at hand were liable to be technical, nuanced, and thoroughly beyond the competence of any jurist to fully understand, much less challenge. In any case, on questions concerning the granular application of broad principles of public policy, the responsible agencies were answerable to the elected Executive, Congress, and ultimately the voters, should it be widely agreed that any particular ruling or regulation was some sort of outrage. This was far more democratic than leaving the decision to unelected federal judges with lifetime tenure.
Yeah, well, that’s all over. As expected, Chevron was just done away with by a rote 6-3 majority decision. Writing for the Court, Chief Justice Roberts, whose name, I believe, will live in infamy, opined that “the Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play.”
So, then, it was back to the convenient intellectual haven of originalism, with Roberts and his pals pretending to adhere to what they claim the old white guys in the tri-corner hats would have thought, back around 1785. He supported his conclusions by arguing that the Chevron Doctrine was just a made-up judicial rule, which is rich, coming from the same bunch that pulled the “major questions” doctrine out of its collective backside.
This is, of course, utter bullshit. It’s a power-grab, simple as that, arrogating to the courts the role of final arbiters in matters of public policy with respect to which they have nowhere near the necessary knowledge, and no business interfering. It has the potential to ham-string the entire spectrum of regulatory agencies, leaving it to conservative trolls in black robes to decide whether, say, a drug should have been approved after clinical trials, what amounts to unsafe working conditions, what constitutes minimum standards of hygiene in meat packing plants, what rules are best suited to prevent securities fraud and ensure the smooth operation of capital markets, and on it goes. It’s madness.
But there’s a method to it. Now, whenever some over-moneyed plutocrat decides that some regulator or other is making it too damned difficult to sell dangerous goods, peddle fraudulent securities, contaminate ground water, or whatever other dirty little deed seems profitable, all can be set right by getting one of the made-to-order advocacy groups to file a lawsuit, pushing legal arguments buttressed by the usual amicus briefs concocted in the various captive billionaire-funded think tanks. After that, buy Thomas a new RV. Easy-peasy!
It’s hard to say how much this will do to undermine good governance across the broad range of matters for which the U.S. federal government is responsible. It has the potential to put the billionaire class, already ensconced so firmly, in so many ways, in the governmental driver’s seat, in an even better position to do away with a whole host of constraints that now prevent them from the pillaging, despoliation, and human rights abuses that would make the endless accumulation of filthy lucre so much simpler for them. God only knows what this means for environmental standards, product safety, unfair labour practices, undue market consolidation, tax collection, and a million other aspects of the government’s often losing battle to prevent the worst excesses of rapacious, predatory capitalism. All because of a judiciary assiduously stacked over many years with Federalist Society stooges selected from Leonard Leo’s list of reliable right wing legal minds, some of them intelligent, many of them as stupid as a sack of hair, all of them inclined to come down in favour of the wealthy elites whenever the super-rich bastards choose to make a federal case out of something that bothers them.
Tomorrow, we’ll find out if SCOTUS has determined that the President is a King ruling by Divine Right. I’m struggling desperately to hew to my former certainty that no court of law, not even one populated by dogmatic goons like Gorsuch, Alito, Thomas, and the rest of them, could ever reach such a conclusion. Oh, how I dread finding out whether the smart money should have been bet, as ever, on my side losing.
the needlefish 