The new world order has created odd bedfellows.
Previously, the momentum of the political right surged behind efforts to get the Supreme Court to bite on nondelegation, the “doctrine” that Congress can’t outsource any of its legislative duties to the executive branch. In practice, this would mean defanged agencies that have to wait on Congress — which moves glacially, if at all — to pass even the most minute regulatory changes before they can act.
Then Trump became President again. The methodical effort to push the federal judiciary to the right on agency power can’t hope to compete with Elon Musk and DOGE’s unilateral, illegal takeovers and shuttering. These cases took years to work up the judicial pipeline; Musk broke the back of USAID in days.
This tipping of the chessboard has left old alliances scrambled, as evidenced in Wednesday’s Supreme Court oral arguments. Some of the same people behind the death of Chevron deference — a major blow to agency authority last year — were back again, this time to challenge the Federal Communications Commission’s program that delivers subsidized internet and phone service to low-income and far-flung Americans. The blandly named Consumers’ Research organization had challenged the program under the nondelegation theory, turning a seemingly run-of-the-mill case into one that stood to reshape the balance of power.
Defending the FCC was the odd duo of Trump’s acting Solicitor General Sarah Harris and Paul Clement, the former Bush administration solicitor general who appeared on Trump’s Supreme Court list in 2020.
The justices, too, didn’t all fall along predictable lines. While Justices Neil Gorsuch and Clarence Thomas took fairly friendly positions to Consumers’ Research and the liberals sounded solidly arrayed against it, Justice Samuel Alito made a rare appeal to sympathy for the largely rural Americans who would be cut off without the FCC’s program.
“I am quite concerned about the effects of a decision in your favor on grounds that you have been pressing this morning,” Alito told Consumers’ Research’s Trent McCotter, a former Trump deputy assistant attorney general. “What would be the effect on people in rural areas if this is held to be unconstitutional and Congress does not act?”
It was a telling moment from the justice who once wrote that “women are not without electoral or political power” when striking down abortion rights.
Alito also pointed out that it’s harder for Congress to act now than ever before — a concern he has decidedly not voiced in other anti-agency cases.
Justices Amy Coney Barrett and Brett Kavanaugh, too, expressed skepticism particularly at McCotter’s argument that the FCC’s program would be constitutional if Congress attached some arbitrary price cap — say, a trillion dollars — to how much money it could raise to subsidize these services. Instead, the statute has other restrictions written into it, including that the money paid in by telecom companies should be “sufficient” to fund the universal service.
“We would be saying, I think, if we agree with you, ‘sufficient’s not good enough but trillion dollar is’ and I think a lot of people would say that doesn’t make a lot of sense,” Kavanaugh said.
The Court hasn’t taken the bait on every anti-agency case that hits its docket, but it’s been moving decisively in that direction, the death of Chevron deference last term a historic landmark along that march.
But the tenor is different now. The Court fight over nondelegation isn’t so existential when Trump and his coterie are unlawfully ripping up the executive branch and siphoning all of its power up to the White House.
“I’m just wondering whether it is really democracy enhancing to create a doctrine that, at least in this case, would allow judges to strike down this very popularly enacted law,” Justice Ketanji Brown Jackson said.
Hours earlier, Trump tasked Musk and DOGE with combing through states’ voter rolls in search of the ever-elusive mass fraud, part of an executive order that experts warn could disenfranchise millions of Americans.
It’s hard to tell who’s acting out of principle and who is acting Trumpian.
Alito expressed concern? For people?
Did he get into Leon’s ketamine?
The photo at the top of the article, from the pseudo-SOTU
shows Trump with an IV-type bruise on the back of his hand.
March 4 was more than a week after Macron shook his hand too hard.
Reversing course on non-delegation makes perfect sense when the felon and his minions (or is that the other way round) are arguing that Congress has delegated all power to the executive even when the clearly stated letter of the law says otherwise.
But there has to be a tiny fig leaf of concern for (in Alito’s mind) mostly older, mostly white rural dwellers who might otherwise not get their daily doses of propaganda.
People need to call these Trumpers’ out for their abusiveness. It’s uncalled for, unproductive, juvenile, corrosive to our nation, generally completely wrong, unprofessional, and makes them look look like pathetic losers.
He’s the Editor-in-Chief of a well respected publication that has over a million subscribers, has been in publication since 1857, is read widely throughout the Washington DC biosphere. The National Security Advisor should know all about the DC and National Press, especially those who have been at it and have risen to a position of responsibility that gives them access to the higher levels of our government. Yet Waltz says this:
I imagine Jeffrey Goldberg isn’t bothered personally by Waltz assessment, it only shows his inadequacies for his position as National Security Advisor, as a leader for our country, and as a person. I’d like to hear the media en masse or en general push back on his garbage, and maybe break through a few hard heads that are as ill-served by these frauds as the rest of us are.
The only saving grace of the whole incompetent and inadequate National Security apparatus, CIA, NSA, FBI, et al, is that why would some outside group interrupt our own self destruction as a democracy and as a force for good (however imperfectly) to launch a terrorist attack to unite us against an outside enemy?