Time to re-engage for 2022!

January 10, 2022

[Audio version here.]

          Last Friday, the Supreme Court heard oral argument in two cases involving vaccine mandates issued by federal agencies—OSHA and the Centers for Medicare and Medicaid. Rulings in both cases will be issued soon because they involve the question of whether lower courts can issue “preliminary injunctions.” Such injunctions are temporary, remaining in place while the trial courts consider the merits of the challenges to the mandates. As a practical matter, by the time the lower courts hold trials on the merits of the mandates, the pandemics will be over. Thus, the preliminary injunctions, if granted, will effectively strip the Biden administration of power to issue vaccine mandates. Americans will die as a result.

          While the question before the Court seemed narrow—the authority of federal agencies to issue vaccine mandates—the implications are sweeping. The Court seemed to signal that the “individual liberty” to refuse the vaccine outweighs the societal interest in preventing harm to others. The Court also seemed to be signaling its desire to strip federal agencies of vast swaths of regulatory authority—a long-term goal of the most conservative wing of the Republican Party. Finally, the Court is poised to claim for itself the right to decide which federal regulations can be issued under a congressional grant of authority to an agency. We may be witnessing a massive shift of rulemaking authority from the executive to the judicial branch—a radical seizure of federal power entirely at odds with the traditional conservative view of the federal judiciary’s role.

          Before discussing details, let’s skip to the end: The reactionary majority of the Court is about to undo five decades of judicial deference to rulemaking by federal agencies. That revolution will occur because Mitch McConnell denied Barack Obama the right to appoint justices as provided in the Constitution and because Donald Trump appointed a justice a week before a presidential election. Two justices of the reactionary majority thus occupy seats that were obtained in violation of the Constitution or centuries-long norms relating to appointments of justices. The Court must be enlarged to prevent the illegitimate majority from taking a wrecking ball to decades of settled precedent.

          On the issue of vaccines, Justice Gorsuch made a jaw-dropping statement, comparing Covid-19 to the flu. In the official transcript of the proceeding, Gorsuch allegedly said that the flu kills “hundreds of thousands of people a year”—a patent falsehood. (Official Sup. Ct. transcript here.) The audio of the hearing is ambiguous, suggesting that Gorsuch said that the flu kills “hundreds, thousands of people a year.” It does not matter which of the contested statements that Gorsuch made. It is an outrage either way. Comparing Covid-19 to the flu tracks the talking points of conspiracy theorists, anti-vaxxers, and Fox News. Justice Alito joined in the anti-vaccine hysteria by saying that some vaccinated people “will suffer adverse consequences”—suggesting that vaccines are unsafe. (Before he made that point, Alito said three times, “I am not making that point.”) In short, anti-vaccination propaganda has made its way onto the reactionary majority, which appears ready to substitute their political views about the vaccine in place of the federal agencies charged with protecting the health and safety of workers.

          An equally disturbing implication of the hearing is that the Court will abolish traditional judicial deference to federal rulemaking by agencies. The legal issues are complicated and beyond the scope of this newsletter. Interested readers should consult the excellent analyses by Ian Millhiser in Vox, “The Supreme Court appears more afraid of Joe Biden than it is of Covid-19,” and Kimberly Wehle in The Atlantic, “What the Supreme Court’s Vaccine-Mandate Case Is Really About, (“This could be the start of a major dismantling of the federal government.”) If the reactionary majority uses the vaccine mandate cases to strike down large swaths of federal workplace regulation, it will hurt workers, businesses, and the American economy. But the ideals of the Federalist Society will be protected from harm.

          Democrats can stop this judicial carnage by enlarging the Court. Congress could do so tomorrow—if it abolished the filibuster. Dozens of other worthy suggestions for reforming the Court require a constitutional amendment and ratification by 38 states—which will never happen. We have a mechanism to rehabilitate the Court, and we should use that mechanism now.

Neal Katyal on Merrick Garland.

          I have taken Merrick Garland at his word that the DOJ investigations of the January 6th insurrection will hold accountable those responsible “at every level” and “whether present or otherwise.” Former acting Solicitor General Neal Katyal is dubious. Katyal also notes that even if Garland will eventually get around to investigating Trump, the delay in doing so is prejudicial to the integrity of any such investigation. See Neal Katyal in The Atlantic, “The Justice Department Needs to Investigate Trump and His Enablers.”

          On the other side of the coin is the argument that prosecuting a former president is serious business and must be done with utmost caution. See E.J. Dionne, Jr. in The Washington Post, “Garland’s caution is an asset when it comes to holding Trump accountable.”

Please read this article in the NYTimes by Ezra Klein.

         Early Sunday morning, readers started sending me links to Ezra Klein’s op-ed in the NYTimes, “Steve Bannon Is Onto Something.” I was put off by the title but read the op-ed anyway. Wow, am I glad I did! Klein makes essential points that every Democrat worried about 2022 should read. Klein starts with some tough love. He says that being involved in politics is not doom-scrolling on Twitter and then complaining to family and friends about all the things you just read. Real political work is

the intentional, strategic accumulation of power in service of a defined end. It is action in service of change, not information in service of outrage.

          That phrase worth remembering: Political work is “action in service of change.”

          Klein devotes much of his essay extolling the necessity and virtue of political action at the local level. He quotes Amanda Litman of Run for Something, who says,

          We do not have one federal election. We have 50 state elections and then thousands of county elections. And each of those ladder up to give us results. While Congress can write, in some ways, rules or boundaries for how elections are administered, state legislatures are making decisions about who can and can’t vote. Counties and towns are making decisions about how much money they’re spending, what technology they’re using, the rules around which candidates can participate.

          Whether Democrats “win” or “lose” in 2022 will be defined by tens of thousands of races up and down the ballot—not merely by who controls the House and Senate. As Amanda Litman notes, Congress controls some things, but state legislatures and city councils control other important aspects of political and civic life. So, as you practice the art of “action in the service of change,” don’t limit your field of vision to federal races only. Yes, they matter, but driving people to the ballot box for races at the bottom of the ticket can boost candidates in close races at the top of the ticket!

Field Team 6 interview on Today’s Edition Podcast

         On Saturday, I interviewed Jason Berlin, the founder and driving force behind Field Team 6. If you want a reason to feel hopeful about our prospects for 2022, listen to the Today’s Edition Podcast, “Interview with Jason Berlin of Field Team 6.” Volunteers with Field Team 6 do one of the hardest things possible in politics: They approach strangers and ask them if they want to register to vote! Field Team 6 trains volunteers to be fearless, organized, and effective. You can start your own voter registration drive by using the “Voter Drive in a Box” available on the Field Team 6 website. And if you run a local organization interested in partnering with Field Team 6, they will welcome you with open arms and great resources! And, of course, Field Team 6 welcomes donations to help fund its voter registration drives. (About 90% of Field Team 6’s budget goes directly to registration drives.)

          It is easy to see why Jason has built such an effective organization. If you don’t have time to listen to the entire podcast, listen to this two-minute snippet from Jason’s conclding comments for your daily inspiration:  Jason Berlin’s concluding comments.  

Contact information for corporations donating to Sedition Caucus members.

          Last week, I mentioned articles in Popular Information and the New York Times highlighting corporations that pledged to suspend donations to Sedition Caucus members and subsequently violated that pledge. A couple of dozen readers asked for contact information for those companies. Reader Cathy Murphree put together this document that contains mailing addresses and electronic addresses for companies that appear to be supporting members of the Sedition Caucus. Thank you, Cathy!

Concluding Thoughts.

          In my interview with Jason Berlin, he said two things that gave me hope for 2022. In describing his journey from writer in the entertainment industry to leading political activist, he said that “You come for the cause, and stay for the people.” In that statement lies the essence of political activism: joining with like-minded people who lift you up and give you strength. You become part of a community that helps everyone in the community to endure tough times and push on to victory.

          Second, Jason noted that we now have millions of Democrats who have five years of experience in political organizing and activism. Groups like Field Team Six, Swing Left, Indivisible, Sister District, PostCardsToVoters, Voter Riders, Voter Movement Project, Fair Fight, and many others have existing staff, dedicated volunteers, and databases. 2021 was adrift in the political doldrums, but people are re-engaging for 2022. I have heard that sentiment from many readers. If you took a hiatus in 2021, you deserved a break! But now is the moment to re-engage. Your friends and colleagues are waiting with open arms to welcome you back!

          Talk to you tomorrow!