During a major hearing this week, the conservative justices made clear theyāre about to gut the federal governmentās power to regulateāand take that power for themselves.
The Supreme Court heard two consolidated cases yesterday that could reshape the legal landscape and, with them, the country. The cases take on Chevron deferenceāthe idea that courts should defer to executive agencies when applying regulations passed by Congress. Theyāre the most important cases about democracy on the courtās docket this year, and I say that knowing full well that the court is also set to decide whether a raving, orange criminal can run again for president, and whether former presidents are immune from prosecution for their crimes in the first place.
Thatās because what conservatives on the court are quietly trying to do is pull off the biggest judicial power grab since 1803, when it elevated itself to be the final arbiter of the Constitution in Marbury v. Madison. Theyāre trying to place their unelected, unaccountable policy preferences ahead of the laws made by the elected members of Congress or rules instituted by the president. If conservatives get their way, elections wonāt really matter, because courts will be able to limit the scope of congressional regulation and the ability of presidents to enforce those regulations effectively. And the dumbest justice of all, alleged attempted rapist Brett Kavanaugh, basically said so during oral arguments.
Iām contractually obligated to tell you that the cases were technically about fees that fisheries are required to pay to federal observers. But all the justices talked about was Chevron deference. Only Justice Sonia Sotomayor even bothered to mention the fish, three hours and 20 minutes into a three-and-a-half-hour hearing.
Yeah, law enforcement shouldnāt be able to throw people in jail (or perform other punitive actions) for things that are not prohibited by law. The law should be applied equally, with a minimum amount of discretion permitted. You only have to look at drug laws to see what happens when law enforcement has latitude and exercises discretion about the manner in which the law should be enforced.
When executive agencies are permitted to decide how strictly a law or regulation must be enforced, they rarely choose to enforce it more strictly. Any time something bad happens, you can usually see that it was a direct result of loosening enforcement of some regulation. This shit happens over and over and over again.
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Regulatory Failure 101: What the Collapse of Silicon Valley Bank Reveals
How FDA Failures Contributed to the Opioid Crisis
Controlled Burns Help Prevent Wildfires, Experts Say. But Regulations Have Made It Nearly Impossible to Do These Burns.
The Chevron case was ruled on in 1984. Did the executive branch have zero leeway prior to 1984? No.
Okay. When youāre done talking past me in an attempt to make your point, I want you to think about the current SCOTUS, what their decisions might look like coming out of this, and that the executive branch isnāt ācopsā.
Theyāre not going to fix the issues that Chevron introduced, theyāre going to nuke the idea that something can be included in legislation if it isnāt explicitly stated. Meaning questions that the Legislation left open for the Executive to answer as it comes up, with Judicial oversight if the Executive exceeds its established authority, will be replaced with only the Judicial branch gets to interpret laws. At that point, any open ended questions left by Legislation can only be decided by the Judicial branch.
This kills the EPA, the FCC, literally any decision making body within the Executive and replaces it with the incredibly slow Judicial system that benefits the wealthy EVEN HARDER than Chevron.
No law that applies exactly to whatever youāre doing? Thereās no law then and you can do whatever you want until someone has standing to sue you about it or a new law is passed. EPA wants to limit a new type of pollution? That wasnāt specifically called out as a pollutant in the NEPA, guess you canāt regulate it until the Legislature adds a clause to allow you to regulate that specific new pollutant. FCC wants to set rules for ISPs? Internet wasnāt a thing in 1934 when they established the FCC, guess you canāt regulate them. Or Broadcast TV.
Dude, this is going to be a nuke to Americaās already hilariously bad guardrails.
The Department of Homeland Security, Federal Bureau of Investigation, United States Marshals Service, Bureau of Alcohol, Tobacco, Firearms, and Explosive, Drug Enforcement Administration, United States Customs and Border Protection, National Security Agency, Immigration and Customs Enforcement, and Department of Justice are cops. There is a Medicare Fraud Strike Force. They donāt walk a beat, but they are cops.
They will not.
Wonāt happen.
You think itās going to be legal to kill Clarence Thomas because there is not a law that specifically prohibits killing Clarence Thomas? I doubt it.