September 9, 2024 10:00 am
Jason Linkins of The New Republic writes that it doesn’t really matter what Kamala Harris’s policies are because the Supreme Court is poised to strike them down. its recent decision, overruling what is known as the Chevron doctrine, hamstrings any Democratic initiative.
If Trump should win, he will be able to appoint replacements for the two oldest justices, guaranteeing a rightwing majority for decades.
Linkins writes that “a dark shadow” blights every policy that a Harris administration might want to initiate. That dark shadow is the conservative majority’s decision in a case called Loper Bright Enterprises v. Raimondo.
Linkins writes:
That ruling, which overturned a doctrine called “Chevron deference,” puts the future of any policy that Harris favors in grave doubt. If you want the Harris campaign to get more detailed on policy, I’m sorry to say that any conversation starts and ends with how they plan to confront a Supreme Court that has torched the separation of powers in the mad game of Calvinball they kicked off during the Trump era.
The gutting of Chevron deference is not something that the smooth-brained masses of the political media adequately understood when it came down. Chevron deference is essentially the doctrine that allows government agencies to respond nimbly to their congressional mandates; hitherto, the judiciary stayed out of the way, allowing executive branch personnel to use their expertise to interpret ambiguous regulations. Imagine, for example, the technological advancements that have occurred since landmark environmental legislation was passed decades ago. The EPA, given free rein to adapt to this changing landscape, can move more fleetly to remediate pollution thanks to Chevron. The Roberts court, instead, imagines a world where they have to return to Congress each time there is an emergency, to get specific guidance.
The best way of describing what the conservative majority did is to say it gave six unelected right-wing politicians who all enjoy a lifetime appointment a line-item veto over anything a Democratic Congress—and by extension Harris—wants to do, unless they can muster the votes to confront each problem they want to solve with an inhuman amount of hyper-specificity. As Vox’s Ian Millhiser has explained, if the executive branch “can’t regulate without getting permission from a Republican judiciary … then conservatives no longer need to worry about Democratic presidents doing much of anything that doesn’t meet the GOP’s approval…”
The Supreme Court really is the most critical policy issue in this election. The Trump-installed majority is central to what the right plans for a second Trump term. Beyond the fact that the Roberts court’s ruling in Trump v. United States imbues the chief executive with monarchic levels of unaccountability—a dangerous privilege for, frankly, any president to possess—Project 2025, which is best understood as a massive rollback of individual rights, is something that Republicans simply could never contemplate without their super-legislature in black robes.
Here, vaporizing Chevron has an asymmetric impact on the ambitions of the two parties. The GOP, having retreated from any part of the policy realm besides Project 2025’s infernal schemes, the furnishing of tax cuts to plutocrats, and deregulating everything under the sun (also a form of wealth transfer to plutocrats), need not worry about Chevron being in effect anymore.
But what makes Chevron crucial to this campaign is that the sledding for Democrats remains rough even if they prevail in November.
Indeed, even if they blow the GOP out of the water electorally, the end of Chevron deference is a fail-safe against Democratic policy, constantly running in the background as long as five of the six conservatives on the Roberts court agree. In this way, Harris and her fellow Democrats are locked out of liberal governance. Since liberal governance will form the cornerstone of anything Harris and Democrats want to do during her time in office, a confrontation with a Supreme Court that’s holding the policymaking apparatus hostage is not a fight they can duck.
All Democrats need to join in this fight, and constantly raise the salience of the Supreme Court and its attendant corruption. It would be a good idea for any policy discussion to note that the Roberts court is the primary antagonist to making things better, easier, safer, and fairer for ordinary Americans; they are despoilers of the land and pilferers of our wealth. Harris should continually remind voters that turning things around will require a Democratic president to be on hand to appoint any replacements that may be needed, and prevent the oldest conservative justices from escaping into retirement, which would allow Trump to replace them with young members of the right’s lunatic lower-court farm system.
Is it time to revisit court-packing? I think the institutionalist case against it completely collapsed by the end of the court’s last term, but I doubt Harris has the stomach to revive the idea over the next several weeks. Nevertheless, the Supreme Court will remain the rock in the road that Democrats must find a way around if they want to improve our lives. Anything you might want an ascendant Democratic administration to do faces the judicial veto of right-wingers who can’t be voted out of office. It’s true that Harris is probably not going to deliver, or even champion, the most ambitious policies that progressives favor. But whether you’re a progressive fan of Medicare for All, or a centrist dedicated to means-tested, watered-down bullshit, you’re all in the same boat, so grab an oar.
Posted by dianeravitch
Categories: Accountability, Civil Rights, Democracy, Disruption, Elections, Extremism, Justice, Republicans, Trump
Tags:
Mobile Site | Full Site
Get a free blog at WordPress.com Theme: WordPress Mobile Edition by Alex King.
The rites of this physical worship, again, were wholly symbolic, and the
Indian no more worshiped the Sun than the Christian adores the Cross.
The Sun and the Earth, by an obvious parable, holding scarcely more of
poetic metaphor than of scientific truth, were in his view the parents
of all organic life. From the Sun, as the universal father, proceeds the
quickening principle in nature, and in the patient and fruitful womb of
our mother, the Earth, are hidden embryos of plants and men. Therefore
our reverence and love for them was really an imaginative extension of
our love for our immediate parents, and with this sentiment of filial
piety was joined a willingness to appeal to them, as to a father, for
such good gifts as we may desire. This is the material or physical
prayer.
The elements and majestic forces in nature, Lightning, Wind, Water,
Fire, and Frost, were regarded with awe as spiritual powers, but always
secondary and intermediate in character. We believed that the spirit
pervades all creation and that every creature possesses a soul in some
degree, though not necessarily a soul conscious of itself. The tree, the
waterfall, the grizzly bear, each is an embodied Force, and as such an
object of reverence.
–Ohiyesa (Charles Eastman) of the Santee Dakota Sioux
LikeLike
By Bob Shepherd on September 9, 2024 at 10:06 am
According to the polls, the Democrats my end up taking both houses of Congress in this election. Still, that might only last 2 years.
I wonder if President Harris with a blue Congress, for at least her first two years, will be able to deal with the six MAGA justices on the US Supreme Court.
LikeLike
By Lloyd Lofthouse on September 9, 2024 at 10:08 am
The Roberts court, instead, imagines a world where they have to return to Congress each time there is an emergency, to get specific guidance.
Because congressmen and women entirely ignorant of the science of water resources are so much more qualified to make decisions about these than are career water scientists with PhDs who work for federal agencies and departments.
It’s extremely important to put the most ignorant in charge of the details of policy. Just ask the Roberts court of Puritan magistrates.
LikeLike
By Bob Shepherd on September 9, 2024 at 10:08 am
The biggest issue in the 2016 election was the Supreme Court (first election in my lifetime where there was an open seat, with the Court tied 4-4 and the new president’s nominee deciding whether it would tilt left or far right). But some on the left felt that the Supreme Court didn’t matter. The real progressives always knew the Supreme Court mattered and I hope some undecided moderates in 2024 realize it does. The anti-Democrat left that didn’t care about the Supreme Court in 2016 continues not to care about it – or democracy.
LikeLike
By NYC public school parent on September 9, 2024 at 10:59 am
“Is it time to revisit court-packing?”
We better hope it isn’t, if Trump wins and the GOP gets majorities in both houses.
LikeLike
By FLERP! on September 9, 2024 at 11:28 am
Makes one long for the day the non representative US Senate was the problem.
LikeLike
By Joel on September 9, 2024 at 11:32 am
OUR CONSTITUTION DOESN’T GIVE THE SUPREME COURT SUPREME LEGAL AUTHORITY
Founding Father Thomas Jefferson, our nation’s third President and the writer of our Declaration of Independence, pointed out the very REAL DANGER TO OUR DEMOCRACY of allowing the Supreme Court the unconstitutional power to decide the constitutionality of laws: “Our judges are as honest as other men and not more so,” Jefferson noted. “They have with others the same passions for party, for power, and the privilege of their corps…and their power is all the more dangerous because they are in office for life and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots” and “Experience has already shown that the impeachment it [our Constitution] has provided is not even a scare-crow…The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Jefferson called America’s attention to the fact that nowhere in Article 3 of our Constitution is the Supreme Court given any authority to decide on the constitutionality of any law: “[As to] the question whether the [Supreme Court] judges are invested with exclusive authority to decide on the constitutionality of a law…THERE IS NOT A WORD IN THE CONSTITUTION which has given that power to them.”
Not only is there nothing in Article 3 of our Constitution that gives the Court authority to rule on the constitutionality of any law, the actual minutes of the Constitutional Convention of 1787 that were accurately recorded by Founding Father James Madison, whom we honor as “The Father of the Constitution”, make it clear that when writing Article 3, the delegates at the Convention made a clear distinction between judicial matters — rulings on civil and criminal matters — and constitutional matters, and that the intent of and the understanding among the delegates was that “the jurisdiction given [to the Supreme Court] was constructively LIMITED TO CASES OF A JUDICIARY NATURE” and did not include authority to decide constitutionality.
Since the Constitution does NOT give the Supreme Court any authority to decide on the constitutionality of laws, where did the Court seize the authority that it claims to have? Well, the Court GAVE ITSELF that alleged authority in its Marbury v. Madison ruling. The Court then explicitly claimed that it had authority to rule on the constitutionality of any law in the 1958 Cooper v. Aaron ruling.
Must be nice to give yourself constitutional authority that the Constitution doesn’t give you.
When the Court gave itself that unconstitutional authority, Jefferson sadly said that it was “the end of our democracy.” And that’s what’s happening today.
Section 2 of Article 3 says that the Supreme Court only has authority “both as to Law and Fact, with such exceptions, UNDER SUCH REGULATIONS AS CONGRESS SHALL MAKE,” which means that CONGRESS — NOT THE SUPREME COURT — has the constitutional authority to determine and limit what matters of Law and Fact the Court has authority to rule on. Nowhere in the Constitution is the Supreme Court explicitly given authority to rule on the constitutionality of “Law and Fact”.
LikeLike
By quikwrit on September 9, 2024 at 8:09 pm
This is a silly argument for reasons I’ve explained many times in the past. As a matter of constitutional law,
Article 3 of the Constitution expressly gives the Supreme Court the jurisdiction to resolve disputes that “arise under the Constitution.” End of story. And more important, as a matter of policy, it is completely insane to prefer a world where Congress determines the legality of the laws it enacts.
LikeLike
By FLERP! on September 10, 2024 at 9:52 am
Thomas Jefferson and John Adams, The Father of our Constitution, are the persons who said that the Supreme Court was not given supreme legal authority over constitutional issues. Check it out.
LikeLike
By quikwrit on September 10, 2024 at 1:14 pm
Tough luck, boys!
LikeLike
By FLERP! on September 10, 2024 at 1:16 pm
You sound like Trump.
LikeLike
By quikwrit on September 10, 2024 at 1:32 pm
Trump doesn’t know what Article 3 says. I do and I just told you.
What Jefferson and Adams had to say is meaningless. What matters is what the Constitution says. And although they were very smart men in general, believing that only Congress should decide whether Congress’s laws are constitutional is very stupid.
LikeLike
By FLERP! on September 10, 2024 at 1:35 pm
Imagine the insane stuff that local and state legislatures in Mississippi and Alabama would be doing if they knew that the federal courts had no ability to block them on constitutional grounds.
LikeLike
By FLERP! on September 10, 2024 at 3:44 pm