Will the Supreme Court curb the power of federal regulatory agencies?

The New Neo Posted on by

They’ve taken the first step, anyway, by agreeing to hear the case of Loper Bright Enterprises v. Raimondo, which is a process that could end up overruling Chevron:

Nearly 40 years ago, in Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. On Monday, the Supreme Court agreed to reconsider its ruling in Chevron.

The question comes to the court in a case brought by a group of commercial fishing companies. They challenged a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.

Chevron has allowed federal agencies to effectively act as unacknowledged, unelected legislators whose decisions have had sweeping conequences. Curbing their power would be a watershed event.

Here’s the Chevron doctrine in a nutshell:

The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency. Rather, as Justice Stevens wrote in Chevron, when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute.

Here’s an objection to Chevron, voiced by political scientist Charles Murray:

Chevron deference augments that characteristic of prerogative power by giving regulatory bureaucrats a pass available to no private citizen and to no other government officials — including the president and cabinet officers — who function outside the regulatory state. For everyone except officials of the regulatory state, judges do not defer to anything except the text of the law in question and the body of case law accompanying it.

This case promises to be interesting as well as potentially important.

Closing time

The New Neo Posted on by

No, I’m not planning to close down this blog.

But most of you know I’ve been dealing with Gerard’s death, plus managing open threads on his old blog so that the commenters can continue to go there and chat with each other and read his old posts. In addition, I’m trying to work on compiling two books: one of his essays and one of his poetry.

But I’m also dealing with shutting down his autopays, of which he had many that weren’t written down. So I monitor his email for notices about them. I’m also working to file a grievance with the hospital for things they did that seem egregiously wrong.

So there’s a lot to do, and I get tired of it – particularly since all these activities also serve to remind me of his death. To close down his accounts, to let his newer blog lapse, to work on a book that I know he had planned to design, all of it is a graphic reminder of what happened.

I didn’t need to get rid of Gerard’s worldly goods; his brother took care of that, fortunately. But I’m taking care of his wordly goods, as his digital executor. The task is likely to take a while.

North Carolina’s SCOTUS reverses previous rulings on redistricting and restores some voting safeguards

The New Neo Posted on by

This is potentially important:

In a trio of rulings Friday, the N.C. Supreme Court restored the state’s voter ID law, took state courts out of partisan gerrymandering disputes, and ended voting for felons who have not completed their sentences.

Each ruling split the court, 5-2. Republican justices supported the majority decisions. Democrats dissented.

The rulings will affect North Carolina’s upcoming elections, including the next set of congressional and legislative election maps.
In a trio of opinions totaling 436 pages, the N.C. Supreme Court has restored North Carolina’s voter ID law, ruled that state courts cannot consider partisan gerrymandering claims, and ended voting for felons who have not completed their sentences.

What happened to cause the reversal? An election. The previous court had a 4-3 Democrat majority. There was an election in November, and two of the Democrat justices were replaced by Republican ones, giving the court its present 5-2 Republican split.

It’s another reminder that justice is not blind, especially in cases such as these which directly concern politics and elections. Interestingly, the present court casts this as a retreat from politics by the court, because the previous decisions were judicial overreach in which the court negated actions by the legislature:

“There is no legal recourse available for vindication of political interests, but this Court is yet again confronted with ‘a partisan legislative disagreement that has spilled out . . . into the courts.’ This Court once again stands as a bulwark against that spillover, so that even in the most divisive cases, we reassure the public that our state’s courts follow the law, not the political winds of the day,” wrote Justice Phil Berger Jr. for the majority.

The voter ID law had been passed by the NC legislature and rejected by the previous NC Supreme Court. The legislature also is in charge of redistricting, but the previous court had thrown out the maps drawn by the Republican-dominated legislature. This new court adds that “state courts will no longer hear lawsuits challenging election maps because of claims of excessive partisanship.” The power rests in the legislative branch. The court stated:

The constitution does not require or permit a standard [for redistricting fairness] known only to four justices. Finally, creating partisan redistricting standards is rife with policy decisions. Policy decisions belong to the legislative branch, not the judiciary.

This would not be happening now but for the recent election in North Carolina that put Republicans in charge of the court. I’d like to know how it was that there was a Democrat majority in that court in that state to begin with, and then how the voters became convinced that the party balance of the court needed changing during the 2022 campaign. Was it about personalities, or general policy? Can the GOP in other states learn from the experience?

If you want to know how many states elect judges and how many don’t, it’s complicated because there are a great many different systems for it. Here’s a list and chart.

Bonchie points out that this ruling is likely to affect the next election:

What that means is that the map that was ultimately adopted for the 2022 election was drawn in such a way as to guarantee a near-neutral split between Republican and Democrat seats. That allowed Democrats to win several seats they would have otherwise lost…

The GOP has a very slim majority in the House of Representatives right now. All it would have taken were a few bad candidates or scandals to arise during the next election to hand the gavel over to Hakeem Jeffries. Having a high probability of an extra four seats in North Carolina is just the breathing room Republicans need to ensure they hold onto power, no matter what happens with the presidential election in 2024.

On attacking any Republican candidate

The New Neo Posted on by

Commenter “Yancey Ward” has made the following claim on the Carroll trial thread, the gist of which I’ve seen for many years on this and other blogs:

And those who think the GOP can avoid these sorts of problems by dumping Trump and nominating someone else in 2024 are delusional. If it ever appears that DeSantis is going to be the nominee, he will be indicted somewhere for something, or have women spring forth from the woodwork to accuse him of rape, too.

There’s no question that any GOP nominee will be attacked. Not only that, there’s a lengthy history of sexual allegations against such candidates: Cain, Moore, and Kavanaugh, just to mention a few. And attacks are hardly limited to the sexual: remember Romney and the dog on the roof, the binders of women, and allegations of high school teasing.

However, the quote also introduces a strawman. Who thinks the GOP can avoid these sorts of problems by nominating someone else? I certainly am not aware of anyone on the right who thinks that such things can be avoided. We’ve witnessed such charges too many times.

However – and this is the basic point – for some candidates, such charges are more believable to the general public than for other candidates. The left is going to believe the charges – or pretend to believe them – no matter what. But the left was never going to vote for any Republican anyway. The charges are aimed at conincing voters in the vast middle to turn away from that candidate. And too many of those voters have already turned away from Trump for a host of reasons, including false allegations mounted against him. Some of those reasons, however, are his own fault, and mostly personality-driven. And the charges are extremely numerous and have had years to accumulate and marinate.

Would similar charges, or other charges, stick against other candidates? Perhaps. We can be sure they will be made, however. A nominee should be chosen with many things in mind, and among them are the baggage that person already carries plus the baggage we imagine will be loaded onto them by their opponents. Baggage is a given. How resistant to it a candidate will be is another question. Trump is already piled high with baggage, however.

Leave them alone and they’ll come home, wagging their beautiful tails behind them

The New Neo Posted on by

Not Little Bo Peep’s sheep, but a peacock named Raul:

Freedom and fame proved fleeting for a fugitive Bronx Zoo peacock.

The runaway bird, dubbed “Raul” by local residents, wrapped up its life on the lam Thursday by flying back home after drawing a morning crowd of fans, reporters and zoo officials while perched in a tree at Vyse Ave. and E. 180th St.

The fowl’s two-day taste of feathery freedom ended quietly when Raul returned to zoo grounds at 11:19 a.m., one day after its escape. Police and zoo officials were pondering their next step in the strange standoff when Raul returned to his urban habitat.

“We kept an eye on the bird (Thursday) morning as he started to move around at dawn and fully expected him to return to the zoo as he did,” said a statement from the Bronx Zoo. “We had confidence in our knowledge of bird behavior to predict how he would behave if given the chance to do so without interference.”

Nice photos at the link.

Senility is the new “competent enough” – or, who cares whether or not it’s the president who answers that 3 AM call?

The New Neo Posted on by

John Hinderaker spotlights an email sent by David Leonhardt, the Times’s “senior writer” who writes for the paper’s daily newsletter. Here are some quotes from Leonhardt’s email:

Strange as it may sound, the American government can function without a healthy president.

At this point the contention doesn’t sound strange at all, because we’ve been treated to over two years of a Joe Biden presidency – although, of course, it depends on the meaning of “function.” The country has been going downhill fast, but to many on the left that’s a feature rather than a bug.

More quotes:

If enough voters are turned off by the idea of a president who would turn 86 in office, Republicans might win full control of the federal government in 2024 — and Donald Trump might return to the White House.

I know that it may seem crass for Democrats to worry more about partisan politics than the mental acuity of the country’s most powerful person. But it’s not entirely irrational.

It’s not the least bit irrational. The country is run by a combination of agencies and behind-the-scenes advisors and aides, and so Biden (who is not entirely senile at this point, by the way) is mostly a figurehead. I am convinced that a significant number of people voted for him in 2020 with the assumption that that was the way it would be. Most Democrats may think he’s too old to be president for a second term but that it doesn’t matter as long as Democrats are in control.

The E. Jean Carroll versus Trump rape/defamation case

The New Neo Posted on by

I haven’t followed the E. Jean Carroll versus Trump trial at all closely. You may not have followed it much, either. But plenty of people are following it with great interest, most of them hoping it will be one of many things to sink Trump and that GOP voters will nominate him despite it. The trial is taking place in New York – of course – and therefore it may be that the jury would convict him no matter how weak the case.

And it seems plenty weak. The plaintiff, Jean Carroll, alleged in a 2019 book that Trump raped her in Bergdorf Goodman some time in the mid-90s He denied it and insulted her as not being his “type”, and she’s suing him for defamation. Therefore it is a civil rather than criminal trial.

In addition, New York obliged her by passing a very special law enabling this trial:

The trial [which began] Tuesday stems from a second lawsuit filed in November 2022, alleging defamation and battery under New York State’s new Adult Survivors Act. The legislation opened a one-year window in which people who say they were the survivors of sexual abuse as adults could sue even if the state’s statute of limitations would otherwise bar their claims.

The law was signed by Hochul in May of 2022 and allowed people to begin filing six months from the date, with no limits on how old their cases might be. There is little doubt in my mind that one strong motive for its passing was to enable the suit by Carroll against Trump.

The statute of limitations aims to protect people from vague and ancient claims that are more difficult to defend against, in which details are forgotten and witnesses and records may have died and/or been lost. But hey, who cares about that, when there’s an opportunity to get Trump?

Here’s a little sample of the testimony in the current trial:

In one line of questioning, [Trump’s attorney] Tacopina sought to highlight an opposition to Trump by Carroll and her friends, as well as suggest they came together to make a plan.

“As soon as we are both well enough to scheme, we must do our patriotic duty again,” Carroll’s friend Carol Martin emailed her on September 23, 2017, one piece of evidence showed.

“TOTALLY!!!” Carroll responded in an email. “I have something special for you when we meet.”

Carroll testified she didn’t know what she meant in the more than five-year-old email by the words “something special.”

“This is an email … that I have no recollection of. I suspect it’s something funny. I can’t imagine what it is. I have no idea,” she said. “I don’t recall anything about this email.”

Of course not.

But I can certainly imagine what that special something might have been.

The case also is one of a newly-popular type of case in which an accused person saying that his/her accuser is lying about a crime is considered grounds for a defamation suit by the accuser. I find that unconscionable, no matter whom the defendant might be.

More here:

Carroll’s attorney used BOBS [“bring out the bad stuff”] masterfully during her testimony…She explained that:

She was flirting with Donald Trump prior to the sexual assault.
The door to the dressing room was open while she was assaulted, but she was trapped by Trump, who weighed at least “100 pounds more” than her.
She did not scream during the attack—saying Wednesday, “I’m a fighter, not a screamer.”
She did not write down anything about the attack in her diary. She added that she never puts negative things into her diary.
She did not file a police report (saying that she was convinced by Carol Martin that she would be “destroyed” by Trump if she did).
She could not recall the precise date, week, month, or year of the attack (although she claimed it likely occurred in late 1995 or early 1996).
She is a registered Democrat.
Her book that described the attack had virtually no sales.

And yet – as with Kavanaugh’s accuser – plenty of people will believe this woman, and she’s got other (no doubt Trump-hating) friends who will testify that she told them of the rape at the time despite never going to authorities. Trump’s attorney’s cross-examination of her probably only increased the perception of her as a beleaguered, unfairly criticized, victim – who is being victimized again by this trial that she has so nobly and bravely brought. The defense attorney is in a double-bind in which, if he questions Carroll’s veracity, he’s just an abuser like Trump! And if he doesn’t question her veracity and sincerity, then the jury may indeed believe her.

Trump predictably – and in my opinion stupidly – has recently made things worse by various postings on social media that are critical of the trial and the plaintiff. Eric Trump also made some social media statements that the judge said were violations of the laws against influencing a jury. Is Trump his own worst enemy? No – but only because he’s got so many rabid and powerful and ruthless other enemies.

ADDENDUM: Carroll claims that quite a few people raped her.

The reasoning of the Democrats I know

The New Neo Posted on by

I found that the following statement – embedded in an article by Walter Russell Mead, that focuses on a different issue – encapsulates the attitude of so many of the Democrat voters I know.

Here it is:

We live in a singular century. Faced, apparently, with the possibility that the next century could witness either the extinction of humanity or the establishment of a global utopia, both our hopes and our fears tend to be larger than life. Political opponents are not just people with whom we disagree. They are people whose misguided views could destroy the planet. Do ordinary standards of political competition still apply when your opponents’ policies will destroy human civilization? Should they be allowed free speech? Should they be able to organize politically even if their electoral victories would destroy life on Earth?

Living in the shadow of the singularity changes the way politics and society work.

The attitude isn’t limited to Democrats. Many on the right share the apocalyptic vision (I do to a certain extent, but not as strongly as some). It’s just that the right has a very different take on the dangers, which boil down to the end of liberty and the rule of law, as well as the splintering of society into special interest groups based on categories of race and sex. Fears of these particular dangers are actually more of a reaction of the right to the Democrats’ attitude as described in the quote.

In addition, I’ve not yet met a person on the right who thinks that utopia is even possible, much less looming in the next century. The right is more inclined to think that dreams that we can actually achieve utopia are themselves dangerous. That’s my point of view, as well.

House passes debt ceiling law

The New Neo Posted on by

It has no chance of becoming actual law, but it’s the opening gambit in the usual tug of war on the subject.

Here’s an approving piece on the subject. And here’s a more pessimistic one.

I tend to think that these debt ceiling negotiations are always framed as GOP horrible: either inadequate (by the right) or cruel and reckless (by the left).