Law for Sustainability
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law”. Dissent in Trump v. US.
Today, as we try to process such things as Joe Biden’s inability to swat aside Donald Trump’s lies, continuing Middle East horrors, and how the Supreme Court won’t protect women, among other calamities, (to mention just two - Darfur, and the success of the right in French elections), we have now as well the Loper Bright, Jarkesy and Corner Post cases,[i] which make it much easier for corporate polluters and fraudsters to sue and stymie the agencies Congress created to protect us from them. Meanwhile in Trump v US the conservative majority on our highest court gave the former president the benefit of the doubt concerning whether he can be sued.[ii]
I yearn for the sophistication that enables everyone instantly to see tortured reasoning, and the sophistication that gets us past deploring how bad things are to the actions we can take. It seems rather simplistic to jump to urging Biden step aside because he isn’t the savior we desire. Whether an internal struggle in the Democratic party will give us a better candidate is a complicated question deserving careful consideration.[iii] But we should not just ask for good leaders if we want a better future. We need to also come together effectively – thoughtfully – as united citizens, if we are to mitigate impending environmental calamities, protect health, rights, community. A sophisticated approach recognizes that it’s up to us.
There are ways forward, even though they may seem indistinct. We will benefit from reasserting principles of civic virtue and practicing real democracy. Agencies now need defending. We can stop being resentful of our bureaucracies and appreciating them for what they do right. Our administrative state has its bureaucratic problems, but it has largely been built through consensus and reason. It is not evil. Quite often, it is competent. Occasionally, it is magnificent. It is ours if we use it and it works well when we value it.
I yearn for the sophistication that enables everyone instantly to see tortured reasoning, and the sophistication that gets us past deploring how bad things are to the actions we can take. It seems rather simplistic to jump to urging Biden step aside because he isn’t the savior we desire. Whether an internal struggle in the Democratic party will give us a better candidate is a complicated question deserving careful consideration.[iii] But we should not just ask for good leaders if we want a better future. We need to also come together effectively – thoughtfully – as united citizens, if we are to mitigate impending environmental calamities, protect health, rights, community. A sophisticated approach recognizes that it’s up to us.
There are ways forward, even though they may seem indistinct. We will benefit from reasserting principles of civic virtue and practicing real democracy. Agencies now need defending. We can stop being resentful of our bureaucracies and appreciating them for what they do right. Our administrative state has its bureaucratic problems, but it has largely been built through consensus and reason. It is not evil. Quite often, it is competent. Occasionally, it is magnificent. It is ours if we use it and it works well when we value it.
Just one example: the Administrative Procedure Act of 1946 ensures the public can comment on rulemaking. Law firms make money doing that for corporate clients. We, the people, could do it a lot more than we do. We could coalesce and overwhelm those self-interested forces if we pay attention and organize.
Judging from how people talk, it seems that many consider democracy weak, airy, complex, boring. That’s where sophistication comes in. Cynicism is simplistic, and it’s easy to shoot down any idea. Take the idea that some who are thinking of not voting to ensure Trump’s loss can be helped to see that this means voting with the people who are trying to start a new Civil War. Some would say you’ll never convince those people. But it’s not true. History – especially here in America – is full of attempted rightwing aggression fizzing out when opposed with sufficient good will and sense.
Our business only begins with recognition of being under attack, and resolving to resist. The more we act to restore and rebuild civil society, the more force we will gather. Easy to say you don’t see how we get there, but we generally have to learn how as we go. No movement occurs when pessimism becomes despair. For example, new obstacles have been placed in the way of Special Prosecutor Jack Smith but he can and is expected to continue to press his case, which remains strong.[iv] A sophisticated public would not be fooled into going along with the majority’s concern for how wrongful suits could frustrate legitimate Presidential business, but retain focus on a just response to clear criminality.
The more we help people see the necessity of such universal principles the more powerful will be the force it can exert to pull us out of the quicksand of extremist, separatist, us versus them thinking. Articulation of the value of real democracy is essential at all times. Sophisticates choose the option of behaving strategically and intelligently instead of panicking. Keeping one’s eyes on the prize, remembering and articulating sincere hopes, ideals, is practical.
There are great reservoirs of good will out there and we usually fail to even try to tap them. There is much power in simply bringing people together in ways that recontextualize them as sharing commonalities. Fuzzy concepts of democracy become tangible when they are embraced. It is with this attitude that we should view the language that the conservatives on the Supreme Court have used. What can we pull out, what can we salvage, and use for good?
Loper Bright caps a line of recent Supreme Court cases that have decimated what we refer to as the Chevron approach, in which agency decisions received “deference” from the courts. This deference was due to the fact that agencies were set up by Congress to do certain tasks for the benefit of us all. Because polluters like Charles Koch don’t like interference with their plans to make ever more money, they have funded a conservative judicial revolution that cynically paints the “administrative state” as a public enemy, rather than our protection from people like them. Loper Bright explicitly overturns that Chevron deference, Jarkesy makes it harder for an agency to recover money from violators, and Corner Post lets violators into court long after they should be kept out. These have rightly prompted much commentary mourning the hit our protective administrative state has just taken. But the recognition of good and evil is just a start. We need to get right to work restoring the good that is being taken from us.
One example is Laurence Tribe’s proposal in today's Times for a constitutional change that would ensure independent prosecution of law-breaking executives – addressing the fact that Trump, if elected, can whisk away legal responsibility for his crimes by effectively controlling the Justice Department. This doesn’t take much sophistication to understand. An interesting article by Richard Pierce in the Regulatory Review provides another example, which takes more, as well as persistence and ingenuity.[v] Pierce, who teaches at George Washington Law School and is part of the Center for Progressive Reform (no conservative as that is defined today), points out that if Congress can speak clearly to an issue, the Supreme Court has now declared its willingness to let that be. We can pray he’s right, but even if not, we must try to hold them to their own words.
This won’t be easy. As Kagan’s dissent tells us, in Loper “A rule of judicial humility gives way to a rule of judicial hubris”. She says “the majority disdains restraint, and grasps for power.” This is not a principled court majority. A sophisticated populace that sees this clearly would be enraged by their arrogance, and would redouble efforts to support the minority and reestablish jurists we can trust.
But Pierce points out that the Supreme Court has uttered language that can undermine its effort to undo the work of agencies. He notes that the court has stated a standard of review in the 1944 case Skidmore v Swift & Co., that a reviewing court must give “’respectful consideration’ to agency interpretations of the statutes that they administer.” This is less than deference, and it can be satisfied with just a nod and an unscrupulous judge will find their reasons to overturn, but it is still a tool to use to argue against this. The more people get this the more some judges, at least, will feel constrained.
Pierce points to language in the opinion “which recognizes that Congress can delegate policy making power to agencies by using broad language in statutes that authorize agencies to act.” The court admits that Congress can so delegate. They just have to be clear about it.
Until we have undeniably clear language, the conservative justices can think they are doing the right thing overturning things saying they aren’t clear to them. But with very clear language we can make it harder for the judicial usurpation of authority to occur. Maybe it’s a tall order to get clear language, but it’s something to shoot for. We must envision the day we take Congress back for the people and get it to speak without ambiguity. We can and must envision the Congress that says, yes, we really do want EPA to be able to shut down fossil fuels. We really do want financial fraud to be punished with fines. We really do want Presidents to be accountable and for Supreme Court Justices to observe ethical standards.
This hopeful note is not a prediction that this will happen. It is discussion of strategy. We need not be simply panicking and mourning. We need to be planning our response and even though we have a bit of a climb before us, to have confidence in the ultimate victory of reason.
Pierce reminds us that conservative majority’s Major Questions Doctrine has already had a pernicious effect on our laws.
“A 2023 study found that many courts interpret the doctrine to require them to hold invalid any agency action that has a significant economic or political effect and that is based on an agency’s interpretation and application of a broadly worded statute. Widespread application of that interpretation of the doctrine would emasculate agencies.”
But let’s imagine that if agencies have explained themselves in no uncertain terms, using strong and consistent reasoning, Pierce is suggesting that courts will be required to respect their rulings. Oh, again, we can dive right into the justified pessimism that the selective reasoning of the conservatives has generated. (For example, not even addressing the question in the Presidential immunity case that had been clearly posed, what if the president orders someone killed?) But if sound reasoning is used Pierce suggests “there is no place for” this doctrine which allows conservative judges to impose their own concepts of how an agency should act, without the necessary knowledge. (Gorsuch’s confusion of nitrous oxide with nitrogen oxide in Ohio v. EPA,[vi] which blocked EPA’s efforts to reduce pollution from one state from harming the citizens of downwind states, exemplifies how courts are poorly equipped to dispense with deference to expertise). Pierce says, with what we can hope is accurate optimism, “the Loper Bright opinion directly undermines the major questions doctrine by recognizing the legitimacy of statutes that use broad language to confer policy making power on agencies.” Can it be true, we breathe with a sigh of hope. Maybe if we raise up this idea and get buy-in to it.
History shows this is possible. This game has been played before and a little sophistication can beat it. When the conservative courts of the late 1800s and early 1900s threw out case after case of “socialistic” laws that interfered with the “right to contract”, (a fiction that assumed the powerless on an equal level with the company owner), reasoning that got through gave us the changes that allowed for law to advance. In law school they call it the end of the Lochner Era, the passing of Classical Legal Theory,[vii] which allowed for the evolution of laws for public health, labor, the preservation of the environment, what we call Public Interest Law. Oliver Wendell Holmes said he didn’t have to agree with what a state legislature decided so he would not participate anymore in overturning stuff he didn’t like. Justice Brandeis convinced many that you had to think about what cases really mean to people, instead of applying abstract legal fictions (for example, today’s court’s hypotheticals of responsible presidents instead of the reality of a former one who is an actual convicted criminal). To be sophisticated today means to understand the simple concept that the conservative majority wants to reinstate the judicial ideas that reigned in the time of the Robber Barons, the age gilded, like Trump Tower, by excessive concentration of wealth and power. If we can get the young, the disillusioned, the disempowered, the embittered, the confused, the cynical, the despairing, the panicked, to see this simple thing – that it is the law of the oligarchy against the law of the people and that we won that battle before - we can take back Congress and get good judging in place.
We can doubt that some members will honor the principles they have articulated. We saw Scalia ignore the facts about the harm of pollution in the 2015 Michigan v EPA [viii] case when he gave us a misleading argument that the rules that would curtail mercury emissions were not worth the money (Kagan pointed out how he ignored huge benefits and invented the sequence in which EPA was to examine costs). We know that Alito and Thomas think we have to stick to ideas from centuries ago, that we are saddled with them and have no choice. After all, Alito says that we are in a battle between sides (rather than an effort to protect the whole). Will Thomas agree when the outcome doesn’t favor the billionaires who buy him vehicles and vacations? The dissents, of historic nature, have pointed out again and again how appalling this judicial behavior has been. It is not fruitful to believe that Americans cannot learn enough now to be as horrified as the Supreme Court minority, and move forcefully to demand the restoration of principled jurisprudence.
Unwinding the falsities is the first line of defense. But it is thrilling when Ketanji Brown Jackson takes it to the next level and uses their own ideas in arguing with them. She talks about the “clear statements” they say they want, and what original intent really means. This is like Judo – using the opponent’s momentum against them.
I hope more people will become just sophisticated enough about these issues to see these simple points, because that will increase the chances that our hopes can be manifested. We can use some of the reasoning that the conservatives employ. For example, they love “original intent”. Well, what does the Ninth Amendment say? That’s part of the original document. Go read it and then the 14th Amendment and all the rest and tell me that women don’t have the right to choose what they do with their bodies, and transpeople don’t have the right to be treated like everyone else. Then read Section 8 of Article One and tell me Congress doesn’t have the right to do what’s necessary to protect our welfare, and read the Preamble and tell me we shouldn’t be giving effect to it! That’s all original intent that the conservatives have not honored, and we need to call them on it, and all the other hypocrisies, until their strained, brittle, unsustainable arguments lose force.
If the people win in November enough what will stop Congress from speaking clearly to our needs – to say yes indeed, polluters can be shut down, fraudsters can be fined? Pregnant women deserve health care, there shall be no state religion, the environment must be protected, and there are equal rights for everyone, including those whose gender others don’t understand? Envision it and spread that dream. Let no more judges with constrained visions come on any of our precious benches, which must be reserved for those with the heart and soul needed for a government of the people.
If people comment on every agency rulemaking, and demand needed rule-making or enforcement when it’s not happening, using citizen suit and other provisions already in our laws, the regulatory state will work better and be more responsive. It is our thing, created to serve our needs. Don’t say we can’t usefully remind people of that. Certain billionaires know their campaign to fashion policies that work for them is vulnerable to exposure, that’s why they pour more money into distracting us. They know that they will lose if more people understand the games they have been playing. Let’s assert ourselves confidently.
The way forward is to more strongly support the continued evolution of Congressional direction and agency implementation. To have more confidence that we can overcome the resentful misunderstandings of our democratic system, and reclaim the government meant to serve us, not Mr. Koch and his ilk, doesn’t take that much sophistication. It’s a graspable idea which can appeal to all Americans capable of comprehending their precious heritage.
It shouldn’t be that hard to actively envision the country we ought to be – as Lincoln did so eloquently, as FDR did so powerfully, and as Joe Biden works for, every day, quietly, although he stammers under fire. A sophisticated take on things shows it’s not really a case of whether one Superman can save us. It’s a matter of whether we can come together and assert our vision of a government for, of and by us. This is not just warm and fuzzy. Pierce’s view that these awful cases can be used to advantage is not fantasy. Brown’s use of conservative logic for sensible outcomes is not fruitless. These positive, hopeful, optimistic approaches are not naïve, they are strategic.
[i] Loper Bright Enterprises v. Raimondo, https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf ignores that agencies develop expertise to defend the interests of taxpayers; SEC v Jarkesy ignores that they need to be able to enforce their rules, 22-859_1924.pdf (supremecourt.gov), and Corner Post v Board of Governors ignores that we need settled rules, (especially when the public has had ample notice of them and has other ways to change them when needed), https://www.supremecourt.gov/opinions/23pdf/22-1008_1b82.pdf, by extending the statute of limitations on challenges to agency actions.
[ii] Trump v. US, https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
[iii] The New York Times and the Atlanta Constitution Journal are two striking examples of newspapers that may have squandered some of the rare trust they’ve been able to build up through the years, when they could have called instead for the convicted felon Trump to step aside for outrageous falsity and behaving like a school yard bully.
[iv] The court said Trump did not enjoy immunity for acts that are not official, but personal.
[v] Two Neglected Effects of Loper Bright | The Regulatory Review (theregreview.org)
[vi] https://www.supremecourt.gov/opinions/23pdf/23a349_0813.pdf
[vii] See William Wiecek’s The Lost World of Classical Legal Thought, 1998.
[viii] 576 U.S. 743.
Judging from how people talk, it seems that many consider democracy weak, airy, complex, boring. That’s where sophistication comes in. Cynicism is simplistic, and it’s easy to shoot down any idea. Take the idea that some who are thinking of not voting to ensure Trump’s loss can be helped to see that this means voting with the people who are trying to start a new Civil War. Some would say you’ll never convince those people. But it’s not true. History – especially here in America – is full of attempted rightwing aggression fizzing out when opposed with sufficient good will and sense.
Our business only begins with recognition of being under attack, and resolving to resist. The more we act to restore and rebuild civil society, the more force we will gather. Easy to say you don’t see how we get there, but we generally have to learn how as we go. No movement occurs when pessimism becomes despair. For example, new obstacles have been placed in the way of Special Prosecutor Jack Smith but he can and is expected to continue to press his case, which remains strong.[iv] A sophisticated public would not be fooled into going along with the majority’s concern for how wrongful suits could frustrate legitimate Presidential business, but retain focus on a just response to clear criminality.
The more we help people see the necessity of such universal principles the more powerful will be the force it can exert to pull us out of the quicksand of extremist, separatist, us versus them thinking. Articulation of the value of real democracy is essential at all times. Sophisticates choose the option of behaving strategically and intelligently instead of panicking. Keeping one’s eyes on the prize, remembering and articulating sincere hopes, ideals, is practical.
There are great reservoirs of good will out there and we usually fail to even try to tap them. There is much power in simply bringing people together in ways that recontextualize them as sharing commonalities. Fuzzy concepts of democracy become tangible when they are embraced. It is with this attitude that we should view the language that the conservatives on the Supreme Court have used. What can we pull out, what can we salvage, and use for good?
Loper Bright caps a line of recent Supreme Court cases that have decimated what we refer to as the Chevron approach, in which agency decisions received “deference” from the courts. This deference was due to the fact that agencies were set up by Congress to do certain tasks for the benefit of us all. Because polluters like Charles Koch don’t like interference with their plans to make ever more money, they have funded a conservative judicial revolution that cynically paints the “administrative state” as a public enemy, rather than our protection from people like them. Loper Bright explicitly overturns that Chevron deference, Jarkesy makes it harder for an agency to recover money from violators, and Corner Post lets violators into court long after they should be kept out. These have rightly prompted much commentary mourning the hit our protective administrative state has just taken. But the recognition of good and evil is just a start. We need to get right to work restoring the good that is being taken from us.
One example is Laurence Tribe’s proposal in today's Times for a constitutional change that would ensure independent prosecution of law-breaking executives – addressing the fact that Trump, if elected, can whisk away legal responsibility for his crimes by effectively controlling the Justice Department. This doesn’t take much sophistication to understand. An interesting article by Richard Pierce in the Regulatory Review provides another example, which takes more, as well as persistence and ingenuity.[v] Pierce, who teaches at George Washington Law School and is part of the Center for Progressive Reform (no conservative as that is defined today), points out that if Congress can speak clearly to an issue, the Supreme Court has now declared its willingness to let that be. We can pray he’s right, but even if not, we must try to hold them to their own words.
This won’t be easy. As Kagan’s dissent tells us, in Loper “A rule of judicial humility gives way to a rule of judicial hubris”. She says “the majority disdains restraint, and grasps for power.” This is not a principled court majority. A sophisticated populace that sees this clearly would be enraged by their arrogance, and would redouble efforts to support the minority and reestablish jurists we can trust.
But Pierce points out that the Supreme Court has uttered language that can undermine its effort to undo the work of agencies. He notes that the court has stated a standard of review in the 1944 case Skidmore v Swift & Co., that a reviewing court must give “’respectful consideration’ to agency interpretations of the statutes that they administer.” This is less than deference, and it can be satisfied with just a nod and an unscrupulous judge will find their reasons to overturn, but it is still a tool to use to argue against this. The more people get this the more some judges, at least, will feel constrained.
Pierce points to language in the opinion “which recognizes that Congress can delegate policy making power to agencies by using broad language in statutes that authorize agencies to act.” The court admits that Congress can so delegate. They just have to be clear about it.
Until we have undeniably clear language, the conservative justices can think they are doing the right thing overturning things saying they aren’t clear to them. But with very clear language we can make it harder for the judicial usurpation of authority to occur. Maybe it’s a tall order to get clear language, but it’s something to shoot for. We must envision the day we take Congress back for the people and get it to speak without ambiguity. We can and must envision the Congress that says, yes, we really do want EPA to be able to shut down fossil fuels. We really do want financial fraud to be punished with fines. We really do want Presidents to be accountable and for Supreme Court Justices to observe ethical standards.
This hopeful note is not a prediction that this will happen. It is discussion of strategy. We need not be simply panicking and mourning. We need to be planning our response and even though we have a bit of a climb before us, to have confidence in the ultimate victory of reason.
Pierce reminds us that conservative majority’s Major Questions Doctrine has already had a pernicious effect on our laws.
“A 2023 study found that many courts interpret the doctrine to require them to hold invalid any agency action that has a significant economic or political effect and that is based on an agency’s interpretation and application of a broadly worded statute. Widespread application of that interpretation of the doctrine would emasculate agencies.”
But let’s imagine that if agencies have explained themselves in no uncertain terms, using strong and consistent reasoning, Pierce is suggesting that courts will be required to respect their rulings. Oh, again, we can dive right into the justified pessimism that the selective reasoning of the conservatives has generated. (For example, not even addressing the question in the Presidential immunity case that had been clearly posed, what if the president orders someone killed?) But if sound reasoning is used Pierce suggests “there is no place for” this doctrine which allows conservative judges to impose their own concepts of how an agency should act, without the necessary knowledge. (Gorsuch’s confusion of nitrous oxide with nitrogen oxide in Ohio v. EPA,[vi] which blocked EPA’s efforts to reduce pollution from one state from harming the citizens of downwind states, exemplifies how courts are poorly equipped to dispense with deference to expertise). Pierce says, with what we can hope is accurate optimism, “the Loper Bright opinion directly undermines the major questions doctrine by recognizing the legitimacy of statutes that use broad language to confer policy making power on agencies.” Can it be true, we breathe with a sigh of hope. Maybe if we raise up this idea and get buy-in to it.
History shows this is possible. This game has been played before and a little sophistication can beat it. When the conservative courts of the late 1800s and early 1900s threw out case after case of “socialistic” laws that interfered with the “right to contract”, (a fiction that assumed the powerless on an equal level with the company owner), reasoning that got through gave us the changes that allowed for law to advance. In law school they call it the end of the Lochner Era, the passing of Classical Legal Theory,[vii] which allowed for the evolution of laws for public health, labor, the preservation of the environment, what we call Public Interest Law. Oliver Wendell Holmes said he didn’t have to agree with what a state legislature decided so he would not participate anymore in overturning stuff he didn’t like. Justice Brandeis convinced many that you had to think about what cases really mean to people, instead of applying abstract legal fictions (for example, today’s court’s hypotheticals of responsible presidents instead of the reality of a former one who is an actual convicted criminal). To be sophisticated today means to understand the simple concept that the conservative majority wants to reinstate the judicial ideas that reigned in the time of the Robber Barons, the age gilded, like Trump Tower, by excessive concentration of wealth and power. If we can get the young, the disillusioned, the disempowered, the embittered, the confused, the cynical, the despairing, the panicked, to see this simple thing – that it is the law of the oligarchy against the law of the people and that we won that battle before - we can take back Congress and get good judging in place.
We can doubt that some members will honor the principles they have articulated. We saw Scalia ignore the facts about the harm of pollution in the 2015 Michigan v EPA [viii] case when he gave us a misleading argument that the rules that would curtail mercury emissions were not worth the money (Kagan pointed out how he ignored huge benefits and invented the sequence in which EPA was to examine costs). We know that Alito and Thomas think we have to stick to ideas from centuries ago, that we are saddled with them and have no choice. After all, Alito says that we are in a battle between sides (rather than an effort to protect the whole). Will Thomas agree when the outcome doesn’t favor the billionaires who buy him vehicles and vacations? The dissents, of historic nature, have pointed out again and again how appalling this judicial behavior has been. It is not fruitful to believe that Americans cannot learn enough now to be as horrified as the Supreme Court minority, and move forcefully to demand the restoration of principled jurisprudence.
Unwinding the falsities is the first line of defense. But it is thrilling when Ketanji Brown Jackson takes it to the next level and uses their own ideas in arguing with them. She talks about the “clear statements” they say they want, and what original intent really means. This is like Judo – using the opponent’s momentum against them.
I hope more people will become just sophisticated enough about these issues to see these simple points, because that will increase the chances that our hopes can be manifested. We can use some of the reasoning that the conservatives employ. For example, they love “original intent”. Well, what does the Ninth Amendment say? That’s part of the original document. Go read it and then the 14th Amendment and all the rest and tell me that women don’t have the right to choose what they do with their bodies, and transpeople don’t have the right to be treated like everyone else. Then read Section 8 of Article One and tell me Congress doesn’t have the right to do what’s necessary to protect our welfare, and read the Preamble and tell me we shouldn’t be giving effect to it! That’s all original intent that the conservatives have not honored, and we need to call them on it, and all the other hypocrisies, until their strained, brittle, unsustainable arguments lose force.
If the people win in November enough what will stop Congress from speaking clearly to our needs – to say yes indeed, polluters can be shut down, fraudsters can be fined? Pregnant women deserve health care, there shall be no state religion, the environment must be protected, and there are equal rights for everyone, including those whose gender others don’t understand? Envision it and spread that dream. Let no more judges with constrained visions come on any of our precious benches, which must be reserved for those with the heart and soul needed for a government of the people.
If people comment on every agency rulemaking, and demand needed rule-making or enforcement when it’s not happening, using citizen suit and other provisions already in our laws, the regulatory state will work better and be more responsive. It is our thing, created to serve our needs. Don’t say we can’t usefully remind people of that. Certain billionaires know their campaign to fashion policies that work for them is vulnerable to exposure, that’s why they pour more money into distracting us. They know that they will lose if more people understand the games they have been playing. Let’s assert ourselves confidently.
The way forward is to more strongly support the continued evolution of Congressional direction and agency implementation. To have more confidence that we can overcome the resentful misunderstandings of our democratic system, and reclaim the government meant to serve us, not Mr. Koch and his ilk, doesn’t take that much sophistication. It’s a graspable idea which can appeal to all Americans capable of comprehending their precious heritage.
It shouldn’t be that hard to actively envision the country we ought to be – as Lincoln did so eloquently, as FDR did so powerfully, and as Joe Biden works for, every day, quietly, although he stammers under fire. A sophisticated take on things shows it’s not really a case of whether one Superman can save us. It’s a matter of whether we can come together and assert our vision of a government for, of and by us. This is not just warm and fuzzy. Pierce’s view that these awful cases can be used to advantage is not fantasy. Brown’s use of conservative logic for sensible outcomes is not fruitless. These positive, hopeful, optimistic approaches are not naïve, they are strategic.
[i] Loper Bright Enterprises v. Raimondo, https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf ignores that agencies develop expertise to defend the interests of taxpayers; SEC v Jarkesy ignores that they need to be able to enforce their rules, 22-859_1924.pdf (supremecourt.gov), and Corner Post v Board of Governors ignores that we need settled rules, (especially when the public has had ample notice of them and has other ways to change them when needed), https://www.supremecourt.gov/opinions/23pdf/22-1008_1b82.pdf, by extending the statute of limitations on challenges to agency actions.
[ii] Trump v. US, https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
[iii] The New York Times and the Atlanta Constitution Journal are two striking examples of newspapers that may have squandered some of the rare trust they’ve been able to build up through the years, when they could have called instead for the convicted felon Trump to step aside for outrageous falsity and behaving like a school yard bully.
[iv] The court said Trump did not enjoy immunity for acts that are not official, but personal.
[v] Two Neglected Effects of Loper Bright | The Regulatory Review (theregreview.org)
[vi] https://www.supremecourt.gov/opinions/23pdf/23a349_0813.pdf
[vii] See William Wiecek’s The Lost World of Classical Legal Thought, 1998.
[viii] 576 U.S. 743.
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