Touching the “third rail” of government.
Daniel Greenfield, a Shillman Journalism Fellow at the Freedom Center, is an investigative journalist and writer focusing on the radical Left and Islamic terrorism.
Four days before Independence Day, the Supreme Court fired its own shot at the modern tyranny that has dismantled the Constitution and runs our lives to a degree King George III could never have imagined and that the Founding Fathers would never have tolerated.
The shot fired at the administrative state was almost missed in the fury over the Supreme Court’s abortion ruling. While the amateur liberals who live on ActBlue, wield blue checkmarks on Twitter and inhabit blue states raved over the fall of Roe v. Wade, the professionals of Washington D.C. were much more worried about another Supreme Court decision.
“Supreme Court climate case might end regulation,” E&E News, a Politico green energy site, warned. That may be excessively pessimistic for big government proponents or optimistic for conservatives, but there’s no question that big government has suffered a serious shock.
West Virginia v. EPA wasn’t just a victory for the coal miners of Appalachia, it sent shudders through the vast infrastructure of the D.C. administrative state. Dobbs v. Jackson was a cultural blow to a post-everything feminism that discarded women, but retained abortion, that felt like an earthquake, but changed surprisingly little, while West Virginia v. EPA is the real revolution.
S&P Global warned that the decision would “complicate FCC, FTC rulemaking processes”. Net Neutrality now appears to be dead all over again. And Americans have new tools for challenging the unaccountable administrative state wielding power over every aspect of their lives.
The implications of West Virginia v. EPA go far beyond environmental regulations. If abortion was the cultural third rail of politics, West Virginia v. EPA is the third rail of government.
Liberalism has taken it for granted that abortion ought to be easily accessible and that government bureaucrats ought to be able to do anything they like. Abortion may be a moral evil, but the administrative state is the root of all evil. Its members made up the “resistance” who sabotaged Trump administration policies, as they did those of his Republican predecessors.
Even as its media and political allies shout about a “threat to democracy”, the administrative state spent generations making elections and elected officials irrelevant. Congress might legislate, presidents might sign bills into law, and judges might rule on them, but the actual implementation was left to a massive expanding bureaucracy which had its own agendas.
The administrative state is why elections feel pointless to most Americans. Elected officials, at least if they’re Democrats and especially if they’re leftists, can have some influence on the system, but no matter how many decades they’ve spent in office, they’re still amateurs. The professionals are the careerists who are permanently on the payroll and who can’t be fired.
It wasn’t supposed to be this way.
“That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution,” Chief Justice John Marshall Harlan wrote in 1892.
“Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested,” Chief Justice Charles Evan Hughes stated in a ruling against another of FDR’s unconstitutional New Deal programs.
The nondelegation doctrine fell victim to the same technocratic forces, the bureaucrats, regulators, experts, and think-tanks driving the New Deal. Eisenhower, the first of many White House Republicans to make peace with the New Deal, oversaw the continued expansion of the government as political elites accepted that the bureaucracy needed a free hand to run things.
Government had become too complicated for self-government, by the people or their representatives.
Reagan became the first post-New Deal Republican president to challenge the administrative state. While he was handicapped by Congress, two administration officials, Clarence Thomas and Samuel Alito, began their long ascents to the Supreme Court. Two generations later, West Virginia v. EPA is a bullet shot into the side of the tyranny the Reagan Revolution was aimed at.
In her West Virginia v. EPA dissent, Justice Kagan made the big government counterargument that agencies ought to hold the real power because “Congress… gives an expert agency the power to address issues — even significant ones — as and when they arise.”
What Kagan was really saying is that elected officials can’t handle running the government. And that’s true enough. It’s not just that Congress passes bills without reading them, it has even less idea of what those bills and how they will be implemented. Government has become unaccountable and three Supreme Court justices believe that we should be ruled that way.
Kagan’s dissent fumed that expecting agencies to rely on Congress to pass laws would “prevent agencies from doing important work” and lambasted the “anti-administrative-state stance” of the conservative “majority opinion”. “Climate change’s causes and dangers are no longer subject to serious doubt how to address climate change. And let’s say the obvious: The stakes here are high,” she wrote, insisting that the manufactured crisis would kill millions unless the bureaucrats were empowered and unleashed to handle the emergency by controlling our lives.
The temporary state of emergency of the New Deal has become a permanent emergency with a rotating list of crises that traditional constitutional authority is incapable of meeting.
“Whatever else this Court may know about, it does not have a clue about… it does not have a clue about how to address climate change,” Kagan complained.
That message, always present, has become deafening in the era of the pandemic, the latest in a series of crises which only the experts are qualified to handle while elected officials are told their job is to keep the people from interfering with the delicate business of crisis management.
The highest court in the land, Kagan insists, isn’t qualified to interfere with the EPA’s experts.
A hereditary monarchy has been replaced with hereditary crises and an expert class of philosopher kings who claim to have all the answers and therefore all of the authority.
The Supreme Court could have done far more to roll back the unlimited authority of federal agencies. Chevron deference remains intact and the decision, written by Justice Roberts, is far too narrow, but it’s also a crack of light in the darkness of a free nation that is not actually free.
What has touched off all that fear in the administrative state was merely Justice Roberts, the most liberal Republican appointee on the court, writing that an “agency instead must point to ‘clear congressional authorization’ for the power it claims.”
The fury over that modest proposal reveals how America is really run. And who runs it.
The media narrative seeks to convince Americans that the Supreme Court is radical and seizing unprecedented powers when it’s really the other way around. In the last few years, agencies have seized unprecedented power over every area of American life. The Biden administration has argued in court that the CDC can issue an eviction moratorium and that OSHA can force workers to get vaccinated. Big government was using a crisis to wield unlimited authority with agencies seizing the thinnest pretext of authority to weigh in on entirely unrelated areas.
West Virginia v. EPA is a response to unprecedented power grabs in which the country is increasingly ruled by ‘pen and paper’ executive orders to a vast omnipotent bureaucracy.
It’s not a final reckoning, but it’s a revolution against a tyranny that has virtually eliminated meaningful self-government and the power of the people. And it’s a long overdue revolution.
“He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance,” the Declaration of Independence accused King George III.
The multitude has only increased. And our substance is all but eaten out.
somehistory says
kagan “doesn’t have a clue.” Some of the others, do.
I have often wondered how the EPA and the BLM…not the current group of criminals in the news, rioting, killing, looting and peacefully making life difficult for others….and other agencies, could make laws and enforce them. Enforcing…regulating…seems to be enough for unelected jerks running roughshod over private lands and private citizens…without giving them illegal authority to write the laws they will enforce.
and there are so many in Congress….the creepy squad members come immediately to mind…who don’t know enough about the Constitution to be employed in writing laws that would conform. and they certainly don’t understand it or wish to keep their *oath* to uphold it.
I’ve been seeing different “news” sources lamenting about this decision by the Court…calling it all kinds of names and saying they are basically getting rid of the “democracy” and the Constitution by ruling against the epa. So much for “truth” in news..
PMK says
Washington, DC has grown too big for its britches. Probably half the agencies and cabinet-level departments need to be eliminated and the power they wield returned to the states and to the American people..
Wellington says
Fine article and a good reason NOT to have term limits. At least with politicians one has the option of not re-electing them, difficult as that may be often times because of all the money involved with incumbents, but if we get term limits this will only make the administrative state even more powerful and surely anyone with sense (this would of course not include Kagan) should see this. So, for all those who want term limits with elected politicians, I say be careful what you wish for because you might get it.
PMK says
Wellington,
The administrative state grows more powerful because Congress delegates to bureaucrats the power to write rules, as it did with Obamacare.. The ‘essential benefits’ were determined by HHS, with the result that these all became mandatory, whether or not individuals needed or wanted them.
I agree that term limits should be up to voters. Vote for someone else, either in a primary or in November. I would do term limits through the back door, by raising the eligibility age by at least fifteen or twenty years for federal elective office. Those without trust funds would have to find another way to earn a living those first two decades out of college.
Infidel says
I have a dream! That one day, all bureaucrats will find themselves out of a job, b’cos every bureaucratic job, which entails executing the orders of the executive and/or legislature, will be automated. Actions will be able to be taken directly from the Oval Office or the House & Senate Floors, and a whole series of daemons will be put into play that ensures that those orders are executed. The Judiciary too would be completely automated, since their sole job is to interpret the constitution as written (yeah, the constitution would have to be digitized before then), so there will be no more appointing of judges, nor hiring of activist judges. As for law enforcement and armed forces, they too would all be robotized, so that they would only respond to emergencies, and cop killings and military casualties will be a thing of the past.
PMK says
Infidel,
How, exactly, do you ‘automate’ the Judiciary? It’s an interpretive body. Is it your idea that a computer program would analyze the wording of law (and precedents) against the wording of the Constitution? In that case, someone has to write the software and it can always be modified by a computer expert to produce the desired result.. Is some sort of Alexa going to be the decider?
All automation requires that rules be set up in advance and the appropriate hardware and software be available to implement it. What if the computer is stumped and can’t give you an answer?
Infidel says
PMK
So I did mention that at first, the constitution would have to be digitized. In other words, every clause in the constitution would have to be put up as a field that has yes/no variables, and essentially have the program poll all the relevant questions in a case to find which scenario is most compatible w/ the law. When you have multiple questions, the ones that adhere to the most questions (which may be weighted if needed) would be the deciding factor
Usually, automation includes something called “exception handling”, which does exactly what you are describing if the computer is stumped for an answer. It could involve tracing all the steps the computer makes and figuring out where it gets stuck. Ideally, it would involve people who are proficient in both coding and the law, so it won’t just be any hack that either party comes up with
gravenimage says
Infidel, I’m not sure I’d want the Supreme Court to be replaced by Google or Apple apps…
And the Constitution was digitized a long time ago–probably sixty years ago. This is different from letting WhatsApp or SnapChat interpret that great document.
somehistory says
“Brett Kavanaugh was forced out of a DC restaurant by protesters amid anger at SCOTUS overturning Roe v Wade”
“According to a tweet from Shutdown DC, which coordinates protests against the justices, they were demanding that the restaurant expel Kavanaugh.
At that point he left by a back door with his security detail. A source told Politico that Kavanaugh didn’t see or hear the protests, but left before dessert. ”
source: Business Insider
What does “without a clue” kagan think of this?