Monday, March 22, 2021

In attacking Biden policies, the Republicans have resurrected a form of non-government known as HypoGOPracy.

Well, Scriber says … it is known as that now to describe the hypocrisy of the GOPlins.

In the March 21, 2021 edition of Letters from an American, Heather Cox Richardson explores the legal roadblocks now forming up to obstruct the Biden administration.

As the Biden administration sets out to restore a government that can regulate business to level the playing field in the United States between workers and employers, address inequality, and combat climate change, Republicans are turning to the courts to stop him.

Republican attorneys general have already launched a number of lawsuits challenging various of the new administration’s policies. …

Here is a list of those topics ID’d by Cox Richardson: Keystone XL pipeline, climate change, immigration, use of federal money to stimulate the economy (and not to cut taxes), bargaining rights of workers and unions, inc. workplace safety.

Most notably … Trump appointed three justices to the Supreme Court. McConnell refused to hold hearings for Obama’s nominee Merrick Garland, now Biden’s attorney general, saying that his nomination in March 2016 was too close to the November presidential election to permit an appointment. This obstruction created an opening for Trump’s first nominee to the Supreme Court, Neil Gorsuch. When Justice Anthony Kennedy retired in 2018, Trump replaced him with Brett Kavanaugh. Then, when Justice Ruth Bader Ginsburg passed, Trump replaced her with Amy Coney Barrett less than two weeks before the November 2020 election.

The importance of those appointments is about to start playing out.

Most dramatic, though, is the court’s apparent willingness to revisit something called the “nondelegation doctrine.” According to Julian Davis Mortenson and Nicholas Bagley, authors of a new piece in the Columbia Law Review, nondelegation was invented in 1935 to undercut the business regulation of the New Deal. In the first 100 days of his term, President Franklin Delano Roosevelt set out to regulate the economy to combat the Great Depression. Under his leadership, Congress established a number of new agencies to regulate everything from banking to agricultural production.

While the new rules were hugely popular among ordinary Americans, they infuriated business leaders. The Supreme Court stepped in and, in two decisions, said that that Congress could not delegate its authority to administrative agencies. But FDR’s threat of increasing the size of the court and the justices’ recognition that they were on the wrong side of public opinion undercut their opposition to the New Deal. The nondelegation theory was ignored until the 1980s, when conservative lawyers began to look for ways to rein in the federal government.

In 2001, the Supreme Court unanimously rejected the argument in a decision written by Justice Antonin Scalia, who said the court must trust Congress to take care of its own power. But after Justice Clarence Thomas suggested that he might be open to the argument, conservative scholars began to say that the framers of the Constitution did not want Congress to delegate authority. Mortenson and Bagley say that argument “can’t stand…. It’s just making stuff up and calling it constitutional law.” Nonetheless, Republican appointees on the court have come to embrace the doctrine.

In November 2019, the same day that then-Senate Majority Leader McConnell boasted on Twitter that the Senate had confirmed more than 160 new federal judges since Trump took office (one out of every four) and would continue to confirm them as fast as possible, Justice Kavanaugh sided with Justice Gorsuch– Trump appointees both– to say the Court should reexamine whether or not Congress can delegate authority to administrative agencies. Along with Chief Justice John Roberts and Justice Thomas, they believe that the Constitution forbids such delegation. If Justice Barrett sides with them, the resurrection of that doctrine will curtail the modern administrative state that since the 1930s has regulated business, provided a basic social safety net, and promoted infrastructure.

As Justice Elena Kagan points out, the nondelegation doctrine would mean that “most of Government is unconstitutional.”

But that, of course, is the point. We are caught up in a struggle between two ideologies: one saying that the government has a significant role to play in keeping the playing field level in the American economy and society, and the other saying it does not.

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