Return to site

Welcome to Rome

With much of the media still focused on such important matters as Biden's appearance in the debate (hint: he's old), I would like to say a few words about the latest abominations from the Supreme Court, which actually are of far greater importance than the perceived lack of vigor of the man who is at present quite competently running the federal government's executive functions.


Last Friday's overruling of the Chevron decision has been generally perceived as a bombshell. Which it is. Back in the 1980s, in the Chevron case, the Supreme Court was confronted with a challenge to the Environmental Protection Agency's interpretation of the Clean Air Act. As part of the rationale for its decision, the Court said that a regulatory agency's interpretation of a rule or statute that it is charged with administering should be deferred to by the courts, if reasonable. This seemed sensible enough, given that agencies have special knowledge and experience regarding the matters they regulate, whereas judges don't know much other than what the parties to litigation tell them. Even Antonin Scalia, the great intellectual fraudster behind "originalism," was a fan of Chevron. But now the Supreme Court, overturning that decision, has liberated itself and the courts beneath it from that onerous duty.


In an excellent podcast with Dahlia Lithwick explaining last week's Supreme Court disasters, Mark Stern was practically beside himelf with rage, noting that there was no actual case in controversy before the Court that would have required it to reconsider Chevron. The actual litigation below had been brought by commercial fishermen complaining about the inconvenience and cost of a requirement that they carry and pay for a federal monitor aboard their boats. By the time the case reached the Supreme Court, the requirement had been dropped and the fishermen had been fully compensated for their expenses. Thus, there was no live dispute. The case was moot. In the old days, back when the Supreme Court still functioned like a court, parties were required to have "standing" in order to proceed before it. This stems from the constitutional requirement that federal courts adjudicate only actual controversies. Over the past several years, though, the Roberts Court has jettisoned such pettifoggery. As needed in order to check off an item on their agenda, they phony up a case, disregarding actual facts and procedure, to serve as a vehicle for their preferred pronouncement. They've done this over and over again in recent years; this is only the latest instance, although one of the baldest.


As most commentators have observed, seizing upon the fishermen's case as a pretext to overrule Chevron has many baleful implications, not least of which is the Court's abandonment of almost any pretense that it is functioning within the realm of judicature. But that is not the only damage to be expected. Without Chevron, it will be harder for regulatory agencies to defend their decisions in court, since they will have to prove not only that an interpretation is reasonable but also that the judge should concur with it. Many commentators expect that this will severely undermine the agencies' ability to function at all, and that precisely such an outcome is the fruit of a decades long "conservative" effort to dismantle what they call "the administrative state." Perhaps worse yet, overturning Chevron is expected to allow stupid, arrogant, incompetent, venal, dishonest, ideologically driven, corrupt judges, like the Roberts Court majority, to substitute their personal predilections for the considered judgment of people who know their ass from their elbow.


But I am inclined to see the situation after Chevron's demise as somewhat less apocalyptic than that. I suspect that in actual practice, "on the ground", the bad effects will be somewhat muted. Regulatory agencies already have to deal with enormous amounts of obstructive litigation. They are used to it. Judges will continue to pretend to listen to experts and to decide for themselves what is reasonable, just as they always have done. I was engaged in state level administrative litigation for over a decade, and I don't recall the Vermont Human Services Board paying any particular deference to the Agency of Human Services. Claims of failure to defer properly to regulatory expertise didn't fare all that well in the Vermont Supreme Court. Chevron established a guideline that in my experience was frequently honored in the breach. Don't get me wrong: the eradication of this guideline is not a good thing. But neither is it the end of the world.


What may well be the end of the world as we know it, or the beginning of the end, was announced by the Court on July 1, 2024, a day that will live in infamy. That's the day the American experiment with democracy was suspended. Whereas before then we lived in an oligarchy with democratic forms and aspirations, as of now we live in a constitutional monarchy. For on that date, the Roberts Court - Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett - invented the doctrine that the president is absolutely immune from criminal prosecution for crimes committed in the course of performing "core" presidential functions and entitled to at least a presumption of immunity in peforming acts related to his official character but not central to it. If you believe you can explain what he could be prosecuted for, you are welcome to try.


Up until July 1, 2024, so far as the American legal and political system was concerned, no such immunity existed, nor could it exist. Although certain people might in point of fact be able to operate as though they were above the law, for example because of wealth or race, it was considered an obvious truism that the system would not and could not recognize any such privilege. Not so, now. The president may murder, rape, lie, steal, cheat, pervert the course of justice, defy the express will of Congress and the courts, so long as he can cover it with some claim that he did it in connection with an offical duty. (Horrifyingly enough, this was in fact an argument that Trump's lawyer made before the Court.) I was telling someone the other day that he should vote for Biden, even though he doesn't like him, because of what's at stake in this election. I said, "You are the kind of person who won't fare well in a Trump regime." He laughed. I said, "You won't find it funny when they're attaching the electrodes to your genitals." He laughed again. That was before July 1. I hope it continues to be funny, but it's less funny now.


I won't go into the details of the decision in Trump v. United States (no, I'm not making that up) because it's enough to say, as Joe Pesci famously observed of a prosecutor's argument in the excellent movie My Cousin Vinny, "Everything he just said is bullshit." Roberts conjures immunity out of nothing. There is no mention of presidential immunity in the Constitution, no implication of it. So much for "originalism" and "textualism." The fundamental contradiction, of immunizing an official from criminal liability for acts performed in the course of his sworn and constitutionally imposed core function of "faithfully executing the laws", is not and cannot be resolved. Reading the first few pages of the decision, I was unable to escape the feeling of being covered in slime.


For those of you who relish irony, imagine Biden giving Trump the Prigozhin treatment, then sending in the troops to erase Roberts and his "conservative" colleagues, all in the name of performing his sworn duty to preserve and defend the Constitution. Whatever else might ensue, under yesterday's decision he couldn't be charged with a crime for it.


I have written to my representatives in Congress, and so should you. This is a five alarm crisis, unlke Biden's occasional difficulty with enunciating clearly. I would suggest you make two demands:

First, remedy the damage: Congress should propose to the States a constitutional amendment clarifying what should have been clear already, that nobody, including the president, is above the law.


Second, put this arrogant, corrupt, and rogue Court in its place. Congress should propose an amendment specifying that when the Supreme Court decides a case on constitutional grounds, effectively amending the Constitution, its decision must be affirmatively ratified by the legislative branch before it can be effective. This latter amendment would not violate the separation of powers, because under the Constitution as it presently exists, Congress has power over the composition and jurisdiction of the federal courts, including the Supreme Court. Indeed, I think Congress probably could impose a ratification requirement on the Supreme Court's constitutional jurisprudence by statute, but that could all too easily devolve into a constitutional standoff. Doing it by amendment would be harder in the short run, but more decisive.