Recently we learned from ProPublica reporting that Clarence Thomas has been the featured attraction at several multi-million-dollar fundraising events put on by the Koch brothers to marshal resources that could apparently be used, in part, to bring cases before the Supreme Court. In previous years, the late Antonin Scalia often joined him at these events.
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Now that the billionaires have succeeded in packing the Court with six hard-right justices who are perfectly willing to ignore federal law about ethics on federal courts and enthusiastic to dance to their benefactors’ tunes, we’re getting close to the point that David Koch envisioned in 1980 when he ran for Vice President on the Libertarian ticket.
His platform was clear, calling for the end of the EPA and other regulatory agencies, and the privatization of the Post Office, Social Security, Medicare, Medicaid, public schools, libraries, and all the nation’s roads and rivers, among other things.
Now, with two cases that the six corrupt Republicans on the Court will be hearing this fall, David could be getting his wish.
The first is Consumer Financial Protection Bureau v. Community Financial Services Association (CFPB v CFSA), which could lead to a shutdown of not just the CFPB but Social Security and Medicare as well. All three of those programs are funded on an “open ended” basis without specific annual appropriations that mention how long they may exist or exactly how much money they can or must spend.
This is called “nondiscretionary spending” because these programs were designed by Congress as a permanent part of the American governmental landscape. Their funding legislation sets up perpetual and specific funds with specific funding mechanisms — the Social Security and Medicare funds are paid for by the FICA tax, and the Federal Reserve funds the CFPB — so they won’t be political footballs when it comes time for annual appropriations.
There’s also the problem that Medicare and Social Security have no way of knowing the exact dollar amounts they’ll spend each year; they can’t predict who’s going to get sick when, or who’s going to die or become disabled. (This is true for most federal agencies, which is why this lawsuit could also shut down everything from the USDA to the FDA to the EPA.)
The plaintiffs in CFPB v CFSA argue that the provision of the Constitution that lets Congress set up agencies and fund them requires that Congress also set specific lifetimes and exact specific annual funding levels for all agencies. This is based on Article I, Section 9, Clause 7 of the Constitution, which says:
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Nowhere, of course, does the Constitution say that agencies that don’t have specific lifetimes or specific annual budgets are outlawed. The idea is, on its face, bizarre. But the Fifth Circuit of Appeals has already ruled — in the CFPB v CFSA case which the Supreme Court will hear this fall — that that’s exactly what the Constitution says.
As legal scholar and author Ian Millhiser notes over at Vox:
“If taken seriously, moreover, this argument would invalidate most federal spending, and it would make it impossible for benefit programs like Social Security and Medicare to even exist.”
If the six Republican justices rule the way the oligarchs who support their extravagant lifestyles want, America could be a very, very different place in just a few years.
Similarly, the case of Loper Bright Enterprises v. Raimondo, could end most of the regulatory agencies that big polluters like the fossil fuel industry and the billionaires it’s made hate.
As Senators Whitehouse, Hirono, Feinstein, and Warren noted:
“This case is the product of a decades-long effort by pro-corporate interests to eviscerate the federal government's regulatory apparatus, to the detriment of the American people.”
So, how could the Supreme Court put the EPA and other regulatory agencies out of business?
It has to do with something called the Chevron deference, a policy established by the Court decades ago to protect just such agencies.
Here’s how regulatory law — using the example of the EPA and CO2 — is supposed to work (in super-simplified form):
1. Congress passes a law that says, for example, that the Environmental Protection Agency should limit the damage that pollutants in the environment cause to the planet. Congress (the Constitution’s Article I branch of government) defines the broad goal of the legislation, but the Executive Branch (Article II, which encompasses the EPA and other regulatory agencies) has the responsibility to carry it out.
2. The EPA, part of that Executive Branch and answering both to the law and the President, then convenes panels of experts. They spend a year or more doing an exhaustive, deep dive into the science, coming up with dozens or even hundreds of suggestions to limit atmospheric CO2, ranging from rules on how much emission cars can expel to drilling and refining processes that may leak CO2 or methane (which degrades into CO2), etc.
3. The experts’ suggestions are then run past a panel of rule-making bureaucrats and hired-gun rule-making experts for the EPA to decide what the standards should be. They take into consideration the current abilities of industry and the costs versus the benefits of various rules, among other things.
4. After they’ve come up with those tentative regulations, they submit them for public review and hearings. When that process is done and a consensus is achieved, they make them into official EPA rules, publish them, enforce them, and the CO2 emissions begin to drop.
This is how it worked with regard to CO2 until June of last year, a process that simply comports with common sense, as the Supreme Court ruled in 1984 when they established the Chevron deference to legitimize and defend our regulatory agencies.
That doctrine — articulated by the Supreme Court and reflecting a century of the will of Congress and presidents of both parties who signed regulatory agencies into existence — says that once a regulatory agency does its due diligence and determines reasonable rules for a substance or behavior, they then have the legal authority to regulate and the courts should defer to the agency.
Congress passes laws that empower regulatory agencies to solve problems, the agencies figure out how to do that and put the rules into place, and the solutions get enforced by the agencies. And when somebody sues to overturn the rules, if the courts determine they were arrived at through a reasonable process without corruption, those rules stand.
Then came a group of rightwing Supreme Court justices — including Neil Gorsuch — who overturned rules made by the EPA about CO2 emissions from power plants in their June, 2022 West Virginia v EPA decision, taking the first big bite out of the Chevron deference.
Their rationale was that because the legislation that created the EPA doesn’t specifically mention “regulating CO2,” the agency lacks that power. And now it has lost that power, the result of that West Virginia v EPA decision last year.
The coal-, oil-, and natural-gas industries have been popping champagne corks for over a year now, as CO2 levels continue to increase along with the temperature of our planet and the violence of our weather.
In addition to Gorsuch, the Court’s decision-makers in West Virginia v EPA included Amy Coney Barrett whose father was a lawyer for Shell Oil for decades, and John Roberts, Samuel Alito, and Brett Kavanaugh who are all on the Court in part because of support from a network funded by fossil fuel billionaires and their industry (among others) that brought that case and are now bringing Loper v Raimondo.
And, of course, there’s Clarence “on the take” Thomas, who supported the Chevron deference 15 years ago but, since being wined and dined by rightwing billionaires, in 2020 wrote:
“Chevron compels judges to abdicate the judicial power without constitutional sanction. … Chevron also gives federal agencies unconstitutional power.”
Giving us a clue to how this will probably go down, all six Republicans on the Court voted to gut the EPA’s ability to regulate CO2; all 3 Democratic appointees opposed the decision.
Elena Kagan wrote that the Court:
“[D]oes not have a clue about how to address climate change...yet it appoints itself, instead of congress or the expert agency...the decision-maker on climate policy. I cannot think of many things more frightening.”
Their ruling was, essentially, that all of that research into the specifics of anticipated regulations — all those hundreds of scientists, millions of public comments, and hundreds of thousands of science-hours invested in understanding problems and coming up with workable solutions — must be done by Congress rather than administrative regulatory agencies.
As if Congress had the time and staff. As if Congress was stocked with scientific experts, a much larger budget, and had millions of hours a year for hearings. As if Republicans in the pockets of fossil fuel billionaires wouldn’t block any congressional action even if it did.
Republicans on the Supreme Court succeeded in dancing to the tune of the billionaire’s fossil fuel network in the West Virginia v EPA case, but it was narrowly focused on CO2.
In the upcoming Loper v Raimondo case they’ll hear this fall, however, the Court is explicitly preparing to expand that victory by blowing the entire Chevron deference out of the water, thus ending or severely limiting most protective government regulations in America and opening the door to court challenges to every regulatory agency established since the first decades of the 20th century.
They’re saying, essentially, that the EPA (and any other regulatory agency) can’t do all the steps listed above: instead, that detailed and time-consuming analysis of a problem, developing specific solutions, and writing specific rules has to be done, they say, by Congress itself.
A Congress where arcane rules and gerrymandering have given Republicans the ability to block pretty much any legislation their billionaire patrons pay them to block.
All of this adds to the urgency of removing Clarence Thomas, John Roberts, and Samuel Alito — corrupt members who have benefited to the tune of millions from their billionaire patrons — from the Court as soon as possible. Or at least diluting their influence.
Democrats were happy to speak out when Al Franken was accused of a tasteless joke, being photographed with his hands a half-foot above the breasts of a faux-sleeping colleague, but seem paralyzed by the naked corruption going on with this Court.
It’s time to raise some serious hell, and Dick Durbin’s Senate Judiciary Committee is the logical place to start with subpoenas of the three mentioned above to bare their corruption to the American people. If you agree, you can find Durbin’s phone numbers and addresses here and a list of the Committee’s members here.
Every day that goes by without these corrupt judges resigning or at least recusing themselves from these vital cases — because of public outrage and congressional pressure — is another day closer to the end of the functional America we’ve all grown to know and love.
And that includes Social Security, Medicare, and the other programs Republicans are gleefully expecting the Supreme Court to rule unconstitutional with these cases in the upcoming months…
