Supreme Court poised to appoint federal judges to run the US economy.

January 18, 2024

[NOTE: No audio version tonight due to illness. See Concluding Thoughts.]

The Supreme Court heard oral argument on two cases that provide the Court with the opportunity to overturn the “Chevron deference doctrine.” Based on comments from the Justices, it seems likely that the justices will overturn judicial precedent that has been settled for forty years. If they do, their decision will reshape the balance of power between the three branches of government by appointing federal judges as regulators of the world’s largest economy, supplanting the expertise of federal agencies (a.k.a. the “administrative state”).

Although the Chevron doctrine seems like an arcane area of the law, it strikes at the heart of the US economy. If the Court were to invalidate the doctrine, it would do so in service of the conservative billionaires who have bought and paid for four of the justices on the Court. The losers would be the American people, who rely on the expertise of federal regulators to protect their water, food, working conditions, financial systems, public markets, transportation, product safety, health care services, and more.

The potential overruling of the Chevron doctrine is a proxy for a broader effort by the reactionary majority to pare the power of the executive branch and Congress while empowering the courts. Let’s take a moment to examine the context of that effort.

But I will not bury the lead (or the lede): The reactionary majority on the Court is out of control. In disregarding precedent that conflicts with the conservative legal agenda of its Federalist Society overlords, the Court is acting in a lawless manner. It is squandering hard-earned legitimacy. It is time to expand the Court—the only solution that requires a simple majority in two chambers of Congress and the signature of the president.

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The “administrative state” sounds bad. Is it?

No. The administrative state is good. It refers to the collective body of federal employees, regulators, and experts who help maintain an orderly US economy. Conservatives use the term “administrative state” to denigrate federal regulation and expertise. They want corporations to operate free of all federal restraint—free to pollute, free to defraud, free to impose dangerous and unfair working conditions, free to release dangerous products into the marketplace, and free to engage in deceptive practices in public markets.

The US economy is the largest, most robust economy in the world because federal regulators impose standards for safety, honesty, transparency, and accountability. Not only is the US economy the largest in the world (as measured by nominal GDP), but its GDP per capita ($76,398) overshadows that of the second largest economy, China ($12,270). The US dollar is the reserve currency for the world and its markets are a haven for foreign investment and capital formation. See The Top 25 Economies in the World (investopedia.com)

US consumers, banks, investment firms, and foreign investors are attracted to the US economy because it is regulated. US corporations want all the benefits of regulations—until regulations get in the way of making more money. It is at that point that the “administrative state” is seen as “the enemy” by conservatives who value profit maximization above human health, safety, and solvency.

It is difficult to comprehend how big the US economy is. To paraphrase Douglas Adams’s quote about space, “It’s big. Really big. You just won't believe how vastly, hugely, mindbogglingly big it is.” Suffice to say, the US economy is so big it cannot be regulated by several hundred federal judges with dockets filled with criminal cases and major business disputes.

Nor can Congress pass enough legislation to keep pace with ever changing technological and financial developments. Congress can’t pass a budget on time; the notion that it would be able to keep up with regulations necessary to regulate Bitcoin trading in public markets is risible.

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What is the Chevron deference doctrine?

Managing the US economy requires hundreds of thousands of subject matter experts—a.k.a. “regulators”—who bring order, transparency, and honesty to the US economy. Those experts must make millions of judgments each year in creating, implementing and applying federal regulations.

And this is where the “Chevron deference doctrine” comes in. When federal experts and regulators interpret federal regulations in esoteric areas such as maintaining healthy fisheries, their decisions should be entitled to a certain amount of deference. And they have received such deference since 1984, when the US Supreme Court created a rule of judicial deference to decisions by federal regulators in the case of Chevron v. NRDC.

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What happened at oral argument?

In a pair of cases, the US Supreme Court heard argument on Tuesday as to whether the Chevron deference doctrine should continue—or whether the Court should overturn the doctrine and effectively throw out 17,000 federal court decisions applying the doctrine. According to Court observers, including Mark Joseph Stern of Slate, the answer is “Yes, the Court is poised to appoint federal judges as regulators of the US economy.” See Mark Joseph Stern in Slate, The Supreme Court is seizing more power from Democratic presidents. (slate.com)

I recommend Stern’s article for a description of the grim atmosphere at the oral argument—kind of “pre-demise” wake for the Chevron deference doctrine. Stern does a superb job of explaining the effects of overruling Chevron:

Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once. Securities fraud, banking secrecy, mercury pollution, asylum applications, health care funding, plus all manner of civil rights laws: They are ultravulnerable to judicial attack in Chevron’s absence. That’s why the medical establishment has lined up in support of Chevron, explaining that its demise would mark a “tremendous disruption” for patients and providers; just rinse and repeat for every other area of law to see the convulsive disruptions on the horizon.

The Kochs and the Federalist Society have bought and paid for this sad outcome. The chaos that will follow will hurt consumers, travelers, investors, patients and—ultimately—American businesses, who will no longer be able to rely on federal regulators for guidance as to the meaning of federal regulations. Instead, businesses will get an answer to their questions after lengthy, expensive litigation before overworked and ill-prepared judges implement a political agenda.

Expand the Court. Disband the reactionary majority by relegating it to an irrelevant minority. If we win control of both chambers of Congress in 2024 and reelect Joe Biden, expanding the Court should be the first order of business.

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More on Dr. Martin Luther King Jr.’s “Letter from a Birmingham Jail.”

Many readers sent notes saying that they read MLK’s Letter from a Birmingham Jail after I linked to it in the newsletter on MLK Day earlier this week. Everyone who wrote to me said they were moved and impressed by Dr. King’s message. One reader, Nancy C., sent a note with a link to a story explaining how Dr. King wrote the Letter from a Birmingham Jail.  

As Dr. King sat in jail, eight ministers published a letter rebuking his non-violent movement. He decided to respond. Here is what happened next, in the words of Willie Pearl Mackey King, who served as a receptionist / typist for the Southern Christian Leadership Conference:

Dr. King decided that he was going to write an answer. He was in jail, and he asked the jailers for pen and paper. They said, “You’re not in a library! You don’t get anything to write with.”

He wrote on the edges of newspaper, on toilet paper, on sandwich bags. His attorney Clarence Jones hid the scraps under his suit jacket and slipped them out of the jail. We had to put together this jigsaw puzzle. We were on the floor, trying to figure it out, Scotch-taping things together. Dr. King’s handwriting was not the best. The lighting was terrible in his jail cell.

I was not allowed to leave the office for three days and two nights. I typed this document on an IBM Selectric typewriter, not a computer where you could cut and paste. If I made a mistake, I had to redo everything. [¶]

That is how we developed the “Letter from Birmingham Jail.” When we released it, no one paid attention at first. Only when Bull Connor [the city’s commissioner of public safety] ordered fire hoses and dogs onto the demonstrators in Birmingham’s Kelly Ingram Park did we start getting requests for the “Letter from Birmingham Jail.” I could not mimeograph enough copies.

If you haven’t had a chance to read Letter from Birmingham Jail, the week honoring Dr. King’s birthday is a good time to do so!

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Virginia undercounts Biden votes, overcounts Trump votes in 2020.

Biden won Virginia by 60,000 votes in 2020. Republicans insisted that Biden “stole” the Virginia election through fraud. After the 2020 presidential election, election deniers were elected to statewide and county-level offices and set about to find fraud. They filed criminal charges against a county registrar, claiming that she engaged in fraud. But the prosecutors never explained what fraud she had committed—and a judge refused her request for clarification about the charges against her. Those charges were recently dropped—and the prosecutor never explained how the registrar had committed a crime.

After the criminal charges were dropped, it turns out that there was an irregularity in Virginia’s statewide vote count—Virginia undercounted Biden’s votes and overcounted Trump's votes! That fact may explain why the charges were dropped against the registrar. The story is explained by Josh Marshall in Talking Points Memo, Another GOP Vote ‘Irregularity’ Freak Out Goes Bust.

The prosecutor and Republican state attorney general kept quiet about the alleged “irregularities” until a special commission released its findings:

[T] he [Republibcan] Attorney General kept the public in the dark about just what the election irregularities had even been or who had benefited. That is until this last week when Prince William County finally reported that the 2020 totals had shortchanged Joe Biden by roughly 4,000 votes.

So, if you have followed the story, the voting “irregularity” was pursued as a crime until it turned out the irregularity benefitted Trump and hurt Biden. The prosecutor claims he dropped charges because a witness changed his story, not because the irregularity helped Trump and hurt Biden! Sure, if you say so! Hypocrites.

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Biden meets with congressional leaders; Speaker Mikek Johnson plays spoiler.

President Biden met with congressional leaders in an effort to break the stalemate on the border bill, which is tied to supplemental funding for Ukraine and Israel. Senate leaders and Democratic House leaders all made hopeful comments after the meeting, suggesting a deal was at hand. Speaker Mike Johnson poured cold water on the optimistic statements, saying there was little progress. As reported yesterday, Johnson has told the GOP caucus he doesn’t want a deal on the border so that he can keep the issue alive for Trump's presidential campaign. See NYTimes, Johnson Casts Doubt on Border Deal to Unlock Ukraine Aid, Defying Biden.

The Times story does a good job of explaining the cross-currents of a complicated situation if you want more detail. The article is accessible to all.

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Help Jessica Craven raise money for the Movement Voter Project.

Jessica Craven of Chop Wood, Carry Water has launched a new fundraiser for the Movement Voter Project, and one of her subscribers has generously offered to match up to 20K of your donations! Please give what you can to this critically important organization, which is almost single-handedly funding the best grassroots organizations out there in states in which we need to win and in states where we’re building long-term progress.

If we want to turn out young people, people of color, and people who will reliably vote blue, there is no better place to give. Please send this link to anyone you know who’s looking for a strategic place to donate early money. If they want to know WHY to give, send them here or here or here. Or just tell them to contact Jessica, who will sing MVP’s praises all day.

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Update on becoming a walking billboard for Democrats.

Speaking of the Movement Voter Project, I mentioned several days ago that t-shirts were available that included slogans like “Dems make things better” on the front and a list of Democratic accomplishments on the back. The sale of the shirts is a fundraiser for Movement Voter Project to help fund research and target critical races that will make a difference in 2024.

Many of you purchased shirts and helped raise money for MVP. The initial promotion was such a success that the original, limited fundraising link has been turned into a permanent link. If you want to buy a great conversation-starter t-shirt, check out the goods here: BECOME A WALKING, TALKING BILLBOARD FOR DEMOCRATS Custom Ink Fundraising

Jill and I will be wearing the t-shirts on our road trip down the Mississippi “Great River Road” in February / March.

Mothers against Greg Abbot.

Reader Cathy M. in Texas has been fighting an exemplary—and sometimes lonely—battle in Texas to help register Democratic voters. She posted a note in the Comments section of yesterday’s newsletter that deserves amplification—and volunteer assistance if you live in Texas!

Cathy writes:

Mothers Against Greg Abbott is the BEST! Later this morning, I will head out to the University of Texas at Dallas to meet two fellow volunteers on behalf of the League of Women Voters. Through the afternoon, we will visit two classes and staff a voter information/registration table for Students Demand Action.

Here in Texas, there IS NOT online registration . . . applicants must use a paper form and whet signature. Applications must be hand-delivered to county offices 20 miles away.

We desperately need more volunteers. I typically lead a few events each week, and we wish we had more volunteers at the ready. All this to say, volunteering in red states can take multiples of time to accomplish the same task elsewhere. I’ve posted information here before. Please spread the word. We need more bodies.

Here is the link that gives more info about volunteering. I work with several organizations, and they are all great--we just need more people, and these groups need donations. Ideas for Registering Texas Voters.

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Concluding Thoughts.

I tested positive for Covid on Wednesday morning, so my publication schedule over the next few days is up in the air. No need to tell me to rest—my Managing Editor is a force of nature who cannot be ignored. She is directing me to “wrap it up” (from another room). I do what she says. This is my second go-round with Covid, and so far, it has been a milder case than the first. My Managing Editor is continuing her recovery from Covid and has posted a brief video update.

Let me close by saying that Trump's petulant, immature conduct in his second defamation trial in federal court is playing to a shrinking minority of supporters. Millions of Americans will cheer him on—but millions will recognize that a man who is unable to maintain courtroom decorum is unfit for any employment, let alone to serve as president of the United States. And the jurors watching Trump's antics are smart enough to understand that Trump's continued defamation from the counsel table is grounds for awarding a staggering amount in punitive damages.

I will send a newsletter tomorrow. Apologies for not being able to record the audio.

Talk to you tomorrow!