Against the Supreme Court’s Appalling Attack on Our Democracy™

By Charles C. W. Cooke

Thursday, June 30, 2022

 

This morning, six unelected judges on the Supreme Court struck a fatal blow against Our Democracy™. In the case of West Virginia v. E.P.A., the Court rejected the expansive authority of the nimble, responsive, and representative Environmental Protection Agency, and insisted that, under the American system of government, federal laws must be made by the elected lawmakers of the United States Congress. From Heav’n, James Madison must surely have wept.

 

The majority’s opinion was predicated upon a loophole within the U.S. Constitution called “Article I,” which, among other things, reads that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” This provision, the Court reasoned, can be reasonably construed to preclude the executive branch from doing whatever it wants, whenever it wants, without underlying statutory approval. Because “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps,” the majority concluded, the EPA is not permitted to “devise emissions caps.” This, I need not point out, is precisely the sort of too-clever-by-half sophistry that gives professional lawyers a bad name.

 

“The question before us,” Chief Justice Roberts confirmed early on in his opinion, “is whether [the EPA’s] broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.” And, over 31 highly un-democratic pages, Roberts decided that it was not. As one might expect, his opinion relied heavily on technicalities, such as the facts that nobody had claimed until recently that the Clean Air Act meant what the EPA now says it means; that Congress had declined to give the EPA the power in question on multiple occasions; that “under the major questions doctrine,” the Court needs to see “clear congressional authorization,” and such authorization doesn’t exist in this case; that the EPA’s interpretation would represent a “fundamental revision of the statute”; and that “there is little reason to think Congress assigned such decisions to the Agency.”

 

Most distressing of all, Roberts steadfastly declined to apply the U.S. Constitution’s crucial “But What If Congress Is Stupid?” clause. “Members of Congress,” Justice Kagan noted in her dissent, “often don’t know enough—and know they don’t know enough—to regulate sensibly on an issue.” And, as we all know, when judges believe that lawmakers are stupid, democracy requires that they hand those lawmakers’ powers over to bureaucrats within the executive branch as soon as possible. By pigheadedly refusing to acquiesce to the EPA’s ambitions, the Supreme Court has made a mockery of its role as a neutral arbiter of the law and rendered itself even more un-democratic than it was when it returned the abortion question to the voters last Friday.

 

A bitter hostility toward self-government simmered throughout both Justice Roberts’s majority opinion and Justice Gorsuch’s concurrence. “A decision of such magnitude and consequence,” Roberts suggested, “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” “Administrative agencies,” Justice Gorsuch insisted, “must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’” “By vesting the lawmaking power in the people’s elected representatives,” Gorsuch concluded, “the Constitution sought to ensure ‘not only that all power [w]ould be derived from the people,’ but also ‘that those [e]ntrusted with it should be kept in dependence on the people.’” Not since the days of General Pinochet have we heard such brazen anti-democratic language as this.

 

Dissenting mightily, Justice Kagan tried her best to overcome the onslaught. Beginning her rejoinder with the Constitution’s oft-ignored “But It’s Really Bad” clause, Kagan drilled down on the key legal questions from the outset. “Climate change’s causes and dangers,” she noted on page one, “are no longer subject to serious doubt.” “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.” Having set the stakes, Kagan then ran through a series of important canonical approaches, before deftly concluding that, when it insists that the executive branch exercise only those powers that Congress has accorded to it, “the Court appoints itself—instead of Congress or the expert agency—the decision maker.”

 

In Washington, D.C., America’s elected lawmakers were understandably apoplectic. By returning power to the legislature, Senator Warren complained, the Court had “destroyed the federal government’s ability to fight back” against the problems she has identified without explicit congressional authorization. On Twitter, meanwhile, Senate majority leader Schumer neatly underscored the problem that the Court’s “extremist justices” had caused. Now that the executive branch had been confined to its statutory powers, Schumer explained, those who wish to “fight the climate crisis” in ways that are not currently permitted by federal law will have to “pass meaningful legislation” to that end.

 

How will Our Democracy™ survive such an unprecedented assault?

A Marxist ‘Hurricane’ Threatens the Western Hemisphere

By Mike Gonzalez & Mateo Haydar

Thursday, June 30, 2022

 

The ongoing Marxist takeover of Latin America netted its biggest prize so far this month when Colombia elected a former terrorist as president. This onslaught, long in the making, threatens our national security and is peaking when we can least afford it — at a time of nonexistent leadership in Washington.

 

Gustavo Petro, a former M-19 guerrilla and controversial Bogota mayor, now leads this key U.S. regional ally, following a narrow victory — he won 50.48 percent of the vote — over populist candidate Rodolfo Hernandez on June 19.

 

Petro has promised to “democratize” unproductive private land — Newspeak euphemisms for land grabs — to redistribute private pensions, and to halt new oil and gas production (because he also understands that environmental extremism is another way to gut capitalism). He insists that he will not outright expropriate land but that the government will hike taxes on landholdings that it considers unproductive and that, if the owner can’t pay, he will forfeit it to the government.

 

Communists understand perfectly well what he means. The Marxist website “In Defense of Marxism” called Petro’s victory “a turning point in the class struggle of a country in which the capitalist oligarchy has typically played the role of executioner with impunity.”

 

In Caracas, Nicolás Maduro, whose Marxist dictatorship has ruined Venezuela, duly announced that a “new era” was starting in the neighboring country. So did former U.K. Labour leader Jeremy Corbyn, whose term in leadership was tainted by anti-Semitism. “Incredible news from Colombia with the election of a socialist president, who has shown the power of community organizing,” tweeted Corbyn.

 

Colombia, they all get, is now finally firmly in the revolutionary orbit, ready to be an ally to China, Russia, Iran, Cuba, and all other U.S. enemies.

 

Maduro and his Havana bosses are entitled to something of a victory lap. His predecessor, Hugo Chávez, was a mentor to Petro, who brought Chávez to Bogota in 1994, five years before Chávez’s own election. Petro was then a member of parliament, his M-19 narco-terrorist group having disbanded in a 1990 amnesty.

 

Colombia’s Marxist-terrorist-narcotrafficking complex became a key ally to Chávez, and then to Maduro, after Chávez’s death in 2013. As Insight Crime puts it, Colombia’s cartels push “cocaine through Venezuela on its journey to US and European markets, while Venezuela’s contraband fuel has gushed in the other direction.” Petro has also long been a member in good standing in the Foro de São Paulo, a Marxist group of governments and nonstate actors, which helps as a coordinating nexus.

 

The outgoing Colombian government of Iván Duque obviously resented Venezuela’s interference in his country’s affairs. When President Trump threw his support for Maduro’s opponent Juan Guaidó in 2019, U.S. allies Colombia, Chile, and Ecuador supported Trump’s policy. Maduro promised revenge by visiting instability on his neighbors.

 

“We are headed towards a Bolivarian hurricane,” Diosdado Cabello, a Maduro ally in the National Assembly in Venezuela, said ominously in October 2019. “It cannot be stopped by absolutely anyone. What is happening in Peru, what is happening in Chile, what is happening in Argentina, what is happening in Honduras, in Ecuador is just a little breeze. A hurricane is what is to come. It is absolutely impossible that Colombia remains how it is. It is absolutely impossible that Brazil remains how it is. There is no way.”

 

Five of those have now fallen, and all in the same manner: Some event creates a spark for demonstrations that sweep the nation, all coordinated through social media. U.S. researcher Doug Farrah described what happened to Chile (which just elected another Marxist as president) in 2019, pointing out that “it was not just discontent from growing inequality that sustained Chile’s unrest. One exacerbating factor was the use of social media, specifically Twitter, where accounts from outside of Chile were fueling the flames of discontent.”

 

Farah’s analysis of 4.8 million tweets from 639,000 Twitter accounts in favor of the protests in Chile during the peak of the unrest found that most of the accounts were not Chilean but Venezuelan, Nicaraguan, and Cuban. On the other hand, the vast majority of tweets against the protests were Chilean.

 

In the case of Colombia, the unrest came in 2021, and it followed the same pattern. Huge protests led to instability that benefited Petro at the polls. He is now ready to pay his debt. Less than 72 hours after the election, he announced that he will reestablish relations with Maduro and reopen the border with Venezuela.

 

This matters. Colombia is the U.S.’s most important ally in Latin America. The largest recipient of U.S. security assistance in the hemisphere, Colombia has received over 2 million Venezuelan migrants fleeing the neighboring socialist dictatorship, serving as a buffer for the U.S. southern border. The Andean nation has twice the population of Venezuela and unique access to Central America and to both the Atlantic and the Pacific Oceans.

 

Unlike Reagan, who came to the aid of democracies in Latin America when they were equally threatened by communists, Biden is unlikely to do anything. He is beholden to groups such as Black Lives Matter, whose members support Maduro and attend Foro de São Paulo meetings.

 

All this poses another global challenge at the worst possible time.

Fighting the Title IX Menace

By Madeleine Kearns

Thursday, June 30, 2022

 

Last week marked the inaugural National Women’s Sports Week and the 50th anniversary of the passage of Title IX. I attended the “Our Bodies, Our Sports” rally, organized by the Independent Women’s Forum. The event coincided with the Biden administration’s release of new Title IX regulations, which — as National Review’s Jack Wolfsohn has highlighted — paves the way for the legal erasure of women and the end of female athletics as we know it.

 

Dozens of brave women gathered at Freedom Plaza to celebrate past female achievements and to stand in defiance of present threats. “I heard someone say the other day that we must not only be the role models for this generation but the heroes of the generations to come,” said Madisan DeBos, a cross-country and track athlete at Southern Utah State University whose team lost to one with a male athlete.

 

DeBos gave a sense of the situation on the ground, the palpable injustice, and the unmissable truth that forcing women to compete against men is not a level playing field. She recalled hearing a male runner competing in the women’s division at a conference championship being told by his coach “to slow down.” “This athlete was in 6th place, moved up to 3rd, then told to slow down and got 2nd,” she explained.

 

I bumped into Selina Soule. Soule is a track athlete in Connecticut who was deprived of opportunities because she was forced to compete against male athletes. In that case, two male athletes were awarded 15 women’s state championship titles, and set 17 new individual meet records, displacing dozens of young women. In 2019, I interviewed Soule for the Wall Street Journal. We noted how there has been a cultural shift since then. “I was the only one, now there’s more of us!” she said. Indeed, two other Connecticut athletes, Chelsea Mitchell and Alanna Smith, joined her at the rally.

 

The young female athletes in attendance were well supported by professional athletes. Cynthia Monteleone, a Team USA World Masters track champion, spoke of her decision to boycott this year’s World Masters championships for allowing male athletes to compete against females. However, Monteleone also found cause for hope. She described the world swimming organization’s recent policy banning athletes who have gone through normal male puberty as a “step in the right direction.”

 

Intergenerational solidarity provides powerful resistance to those who would try intimidating young women who speak out. When Riley Gaines Barker, an NCAA female swimmer forced to compete against UPenn’s male swimmer Lia Thomas, took to the stage, transgender activists (many of them men) assembled nearby with drums and megaphones and attempted to drown her out. The response of those in the rally was to cheer even louder for Gaines. Another speaker cried “Our bodies!” and the crowd responded enthusiastically with “Our sports!”

 

The pushback is also bipartisan. Kara Danksy, president of Women’s Declaration International USA and a registered Democrat, described the transgender craze as “left-wing misogyny on steroids.” Other Democrats were also in attendance. I interviewed former U.S. representative Tulsi Gabbard, a Democrat who was the original sponsor of the Protect Women’s Sports Act. She told National Review that “women for generations fought for the rights of women, fought for Title IX to prohibit discrimination on the basis of sex, they faced backlash, and they were ostracized, and they were criticized. It’s that kind of courage that we need to see from our leaders today.”

 

Fifty years ago, there was little doubt that discriminating “on the basis of sex” referred to anatomical sex. But in May 2016, the Obama administration issued “significant guidance” to public schools via a “Dear Colleague” letter, jointly issued by the Department of Education and Department of Justice, instructing schools receiving federal funding to redefine sex to include transgender identity.

 

Betsy DeVos, the secretary of education under Trump, cleaned up much of this mess and has at least prevented the Biden-Harris administration from immediately resurrecting the Title IX terror. (Thanks to DeVos’s foresight, a long administrative process soliciting comments from interested parties must now ensue.) Still, the ill effects would not be limited to sports. The new regulations would apply to all female-only spaces, roll back due-process rights, and undermine parental rights in the realm of ideological indoctrination and child transition.

 

As Jennifer Braceras and Inez Stepman of the Independent Women’s Forum explained in a recent Wall Street Journal op-ed: “Out of a single sentence barring discrimination on the basis of sex, the Biden administration is illegally rewriting federal law to erase women and undermine constitutional liberties.” These trans-maniacal bureaucrats must be stopped.

Lawmaker Slams ‘Astonishingly Weak’ Response to Chinese Firms’ Support of Russian Military

By Jimmy Quinn

Wednesday, June 29, 2022

 

Representative Michael McCaul (R., Texas) hit the Biden administration for failing to respond forcefully to five Chinese firms’ evasion of sanctions targeting Russia’s war effort. His criticism follows the Commerce Department’s announcement yesterday that the firms are supplying Russia’s military–industrial base.

 

Commerce placed the five companies, which sell electronic components, on the entity list, meaning that U.S. firms are prohibited from exporting to them. McCaul, the top Republican on the House Foreign Affairs Committee, ripped into the administration for declining to go further than that.

 

“Deputy Secretary Sherman promised ‘consequences’ if the CCP provided ‘material support’ to Russia, but the administration’s feeble concept of ‘consequences’ will do little to deter the CCP’s ongoing support for Putin’s war crimes,” he said, citing Sherman’s comments during a hearing in April.

 

In his statement today, McCaul said the administration should have imposed financial sanctions to block those companies from doing any international business.

 

“Providing ‘continued support of Russia’s military efforts’ should result in significant sanctions on those offending companies,” said McCaul, adding that the administration’s response, “is astonishingly weak, and could further the threat Russia poses to Ukrainian civilians and soldiers.”

 

Although the Commerce Department said the designated firms are supplying Russian “entities of concern,” it did not make a determination as to whether the Chinese government is facilitating their sanctions-evasion activity. Last month, Commerce Secretary Gina Raimondo said the U.S. has not identified “systematic” Chinese efforts to blow through the West’s sanctions and export controls targeting the Russian defense industry.

Cassidy Hutchinson’s Testimony against Trump Is Devastating

By Andrew C. McCarthy

Tuesday, June 28, 2022

 

Cassidy Hutchinson, a top aide to Trump’s White House chief of staff Mark Meadows, provided compelling testimony Tuesday that former president Donald Trump is singularly culpable for the Capitol riot.

 

The testimony in a session of the House January 6 committee — a session abruptly called, reportedly due to concerns about Ms. Hutchinson’s safety — was devastating because it was directly about the former president. The day’s lone witness pulled back the curtain that countless advisers and aides kept around the mercurial Trump for four years. There are significant questions about aspects of her account, particularly where it involved hearsay — things she had been told about the president’s actions, as opposed to the things she herself witnessed. We also have to reserve judgment, even allowing that she seems impressive, because the highly partisan, unapologetically anti-Trump committee merely presents its side of the story, and has gone to unseemly lengths to exclude cross-examination and alternative perspectives. All in all, though, Hutchinson showed the nation, moment by moment, what he was like on a day when, undeniably, Trump was at his worst.

 

It was worse than America thought. Even Americans with extraordinarily low expectations about the former president’s previously undisclosed, behind-the-scenes behavior during the hours when the riot unfolded.

 

Skillfully led through a prosecutor-style direct examination by committee chairwoman Liz Cheney, Hutchinson explained that Trump was like a wild beast at the Ellipse shortly before his gasoline-on-the-fire speech. The security personnel had set up magnetometers for entry into the area. That thinned the throngs proximate to the podium where he’d be speaking. Trump was ballistic because of the effect on “the shot” — the video image of his speech that would go out to the world. He wanted an overflowing crowd. He wanted to convey the impression, the reality, of a rabid mob furious that the election had been stolen, furious that Congress was poised to count the “fraudulent” electoral votes and pronounce Joe Biden the winner.

 

The magnetometers were vital for security. Despite its being obvious that the “mags” would detect weapons, many fanatics went through them anyway. Police thus seized knives, clubs, toxic sprays, brass knuckles, and so on. But that is not what most alarmed security forces. They worried about the mobs outside the Ellipse — the fanatics who chose not to go through the mags because they were armed with deadlier weapons: Glock pistols, AR-15s, other firearms. Cheney played communications traffic among the security forces, along with video depicting gunmen who were spotted in trees and elsewhere out on the Mall.

 

The president of the United States, nevertheless, was “furious,” Hutchinson related, because the armed mob was being kept away. It spoiled the optics he had in mind.

 

“Take the f***ing mags away,” he screamed at his aides and security personnel. Told that this could not be done because it was too dangerous, because there were too many lethal weapons, Trump lost it. “They’re not here to hurt me,” he countered. It didn’t matter that they were obviously there to hurt others, and that those others were patently the people inside the Capitol, the ones Trump was accusing of stealing the election. The mobs, even if armed, were his people, Trump insisted. “Take the f***ing mags away. They’re not here to hurt me. They can come in. Then they can march on the Capitol.”

 

Hutchinson was on the scene. This gale of rage happened, she testified, just two or three minutes before the president went to the podium.

 

There, he gave a willfully provocative speech. Legal analysts, myself included, while not defending the speech — which is indefensible — have pointed out that it does not meet the demanding legal test for incitement. Trump makes grudging references to protesting “peacefully”  — and Cheney continues to damage her credibility by eliding mention of that (and it’s gratuitous self-damage because, the more the evidence mounts, the more apparent it is that it’s just a couple of throwaway lines — which doesn’t justify omitting it as if it didn’t happen). Well, Trump’s words may not have been incitement as a matter of law, but that doesn’t mean they are not evidence of other potential crimes — especially once you are informed about how fully aware the president was about the mob being lethally armed. It is a crime, to take just one example, to aid and abet the forcible intimidation of government officials, including the vice president and members of Congress.

 

In any event, Hutchinson explained that the speech, like all presidential speeches, was carefully vetted by staff. White House counsel Pat Cipollone and his staff pleaded for removal of the exhortations Trump was insistent on including — “fight for me,” “fight for the movement,” and so on. They were too close to the legal line of incitement. It was plainly foreseeable that the mob could take forcible action; if it did, White House lawyers feared that this rhetoric would place Trump squarely in legal jeopardy for whatever mayhem resulted — obstruction of congressional proceedings, intimidation of and assault on federal officials, and so on.

 

The rhetoric stayed in the speech.

 

So did Trump’s vow that he would be marching to the Capitol with the mob.

 

This had been a bone of contention for days. Cipollone had admonished Meadows, and beseeched Hutchinson to be firm with Meadows, that the president absolutely must not go to the Capitol from the Ellipse. Meadows was not interested in confronting Trump on this. It may be that he supported the insane idea, but that doesn’t matter, since it was Trump who insisted he was doing it. Cipollone told Hutchinson of his serious legal concerns: “Please make sure we don’t go to the Capitol, Cass,” he said. “We’re going to be accused of every crime imaginable.” Hutchinson recalled that Cipollone was especially worried the president would be accused of obstruction — of interfering in the electoral count.

 

Hutchinson recounted that, after numerous discussions about this among White House staff and security officials, it was “settled” that Trump would not go to the Capitol — which is to say, the underlings made the call without the boss, the president, being on board. Trump, however, did not care what his subordinates thought. As he reminded people innumerable times on January 6, “I’m the f***ing president.” Gliding on the energy of his Ellipse speech, Trump told the throngs that they’d soon be marching on the Capitol and that he’d be going with them.

 

Instantly, Hutchinson’s phone rang. It was Kevin McCarthy, the House Republican minority leader. What did Trump mean by that, McCarthy demanded. He can’t come here, McCarthy inveighed, reminding Hutchinson that he’d been promised Trump would not proceed to the Capitol following the speech. Hutchinson assured him that it wouldn’t happen.

 

It was happening, though — at least the planning for it was concrete and well underway. The records of the Secret Service and the National Security Council, which was watching things unfold in real time, indicate that plans were being made on the fly for Trump to go to the Capitol — to march there, perhaps, or go by car. In fact, these agencies assumed that, once Trump ended his speech at 1:10 p.m., he was on his way to the Hill. It was just a matter of finding the best route.

 

Nevertheless, Hutchinson says she learned from Tony Ornato, the Secret Service official who ran White House security operations, that the agent who headed up Trump’s security detail, Robert Engel, was adamant: The president would not be going to the Capitol.

 

Immediately following the speech, Trump entered a Secret Service SUV and told his detail, “Take me to the f***ing Capitol.” According to Ornato, Engel told the president that this would not be possible, that it was too dangerous. Trump became irate, railing, “I’m the f***ing president, take me up to the Capitol now.”

 

Fortunately, Engel had no intention of testing the “I was just following orders” defense. He refused the president. What Hutchinson says happened next is already controversial. She was told that things got physical. Trump was said to have lunged forward from the back seat and grabbed the steering wheel, prompting Engel to grasp the president’s arm and state, “Sir, you need to take you hand off the steering wheel, we’re going back to the West Wing, we’re not going to the Capitol.” Hutchinson was told that, at that point, Trump lunged at Engel, his free hand forcibly aimed at the agent’s clavicle. Then things deescalated and the SUV went back to the White House — not the Capitol.

 

Trump, who was obviously hanging on Hutchinson’s every word this afternoon, issued a statement on his Truth Social platform, declaring, “Her Fake story that I tried to grab the steering wheel of the White House Limousine in order to steer it to the Capitol Building is ‘sick’ and fraudulent, very much like the Unselect Committee itself.” NBC News, no Trump apologist, reported that its “close to the Secret Service” source said Engel would dispute Hutchinson’s account, as would the driver. Trump apologists, moreover, were quick to point out that Hutchinson’s account is hearsay: She heard the story from Ornato, who got it from Engel.

 

That’s true. Still, a few things are worth bearing in mind. First, this isn’t just any hearsay — like idle chatter a witness might eavesdrop on. We’re talking here about a chain of command, where government officials are expected to report things to their superiors — in this instance, up to the president’s chief-of-staff. More to the point, Hutchinson learned these details just minutes after the encounter in the SUV. Ornato came directly to Meadows’s office with Engel. As Engel looked on in apparent affirmation, Ornato relayed what had just happened to Hutchinson. Engel gave no indication that Ornato had gotten any of the details wrong. And if Hutchinson is lying or exaggerating, it’s strange that, under oath, she would voluntarily identify so many witnesses who could contradict her.

 

On that score, we must note that before presenting Hutchinson’s stunning testimony, the committee interviewed Engel. (It is not clear to me whether Ornato has testified.) Consistent with the panel’s maddeningly opaque process, Engel’s testimony has not been released, so we can’t weigh it against Hutchinson’s and we don’t even know if he was asked about what happened in the SUV. All we can say is that before choosing to elicit Hutchinson’s account in a hyped public hearing, the committee heard Engel’s testimony. Presumably, if Engel gave the committee reason to believe Hutchinson’s hearsay account was wrong, Cheney would not have adduced it. If it turns out that Engel disputed Hutchinson’s story, and that Cheney knew that but adduced Hutchinson’s story anyway, without confronting Hutchinson with Engel’s contrary version of events, the committee might as well pack up its bags and go home. Going forward, the committee must come clean with all the evidence it has collected on this matter. At the very least, we should hear testimony from Ornato.

 

Whatever happened in the SUV, Trump returned to the West Wing incensed, especially at Meadows, whom he blamed for preventing him from going to the Capitol. Hutchinson said she did not witness whatever conversation first occurred between the president and his chief of staff. When she found Meadows in his office, though, he seemed catatonic. The television was on, the rioters were closing in on the Capitol, and Hutchinson tried to snap Meadows out of it, asking if he’d spoken with Trump. No, Meadows said, Trump wanted to be alone right now. Feeling like she was watching a slow-motion trainwreck, she pressed him, bringing up Meadows’s friend, Congressman Jim Jordan: Mark, do you know where Jim is? Rioters seemed poised to enter the Capitol. No, Meadows indicated that he hadn’t heard from Jordan, but the thought at least seemed to get his wheels spinning.

 

Just then, Cipollone came racing down the hall. “Mark,” he thundered, the rioters had gotten to the Capitol. “We need to go see the president right now.” Meadows fecklessly replied that Trump was aware of what was going on but didn’t want to do anything at the moment.

 

Cipollone was incredulous. Things had already turned violent. “Mark, something’s got to be done right now.” If it wasn’t, “blood will be on your hands.”

 

That, Hutchinson recalled, happened sometime around 2:15 to 2:25. Cipollone browbeat Meadows into going to see Trump.

 

As Hutchinson waited behind, Jordan called, desperately seeking Meadows. Hutchinson ran with the cellphone over to the dining room off the Oval Office. The door was closed. After confirming with the valet that Meadows was inside, she stepped into the room and got Meadows’s attention. As she handed him the phone, she could hear chaotic background noise, including the now-infamous “Hang Mike Pence” chants. Hutchinson then left Meadows and Cipollone to their tense discussion with Trump.

 

Moments later, the dejected pair came back to Meadows’s office — Hutchinson believed they might have been accompanied by associate White House counsel Eric Herschmann. She remembered Cipollone continuing to light into Meadows: “We’ve got to do something, they’re calling for the vice president to be f***ing hung.” Referring with resignation to the conversation they’d just had with Trump, Meadows told Cipollone, “You heard him. He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”

 

That is the background that we did not know, up until now, for Trump’s infamous tweet at 2:24 p.m.:

 

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify.

 

The tweet launched a flurry of resignations — Matthew Pottinger, the deputy national-security adviser, told the committee he decided there and then to quit by day’s end. More followed, most prominently Education secretary Betsy DeVos and Transportation secretary Elaine Chao.

 

There was much more to Hutchinson’s testimony. Trump is prone to tantrums — throwing his plate of lunch against a wall upon learning of Attorney General Bill Barr’s public disclosure that there was no evidence of widespread election fraud. This was part of a pattern: It was not unusual for the president to hurl the porcelain when his temper erupted, or just yank the tablecloth and send the whole crashing mess to the floor, for the help to clean up.

 

That was the unhinged Trump of January 6, Hutchinson recalled: turning a deaf ear to his daughter, his oldest son, members of Congress, and friendly media who were imploring him — directly and through Meadows — to tell the rioters to stand down, to do something to stop the violence. He didn’t want to hear it. He couldn’t be moved from his conviction that the rioters were in the right, that it was Pence who had betrayed him.

 

It wasn’t until after 4 p.m. that his staff could prevail on Trump to make a statement telling his supporters to go home in peace. But he refused to condemn the attack. He told the mob that he “loved” them, that they were “very special,” and that he empathized with their anger.

 

The president was equally opposed to the healing speech his staff pleaded with him to give the day after the riot. What seemed finally to nudge him into it was the staff’s explanation that serious discussions were underway about the potential of invoking the 25th Amendment to remove him from office. Even then, though, Trump could not be pushed into saying that the election was now over. And it took emphatic advice from Cipollone and Herschmann to talk him out of broaching the possibility of pardoning people involved in the uprising.

 

Now, it is all well and good to remind everyone, again, that the January 6 committee has foolishly undermined its credibility by failing to provide a fair process. No, there was no cross-examination of Hutchinson. Maybe it will turn out that — as Trump’s characteristically indecorous social-media outbursts during the testimony suggested — Hutchinson is a “total phony,” a “leaker” and “bad news” . . . although she has worked for many top Republicans, is well-liked by many more, and appears to have continued getting promoted over the years because she does a good job.

 

We should understand, in any event, that what Cheney did with Hutchinson Tuesday is what prosecutors do with witnesses in grand juries every day: drawing out the witness’s testimony with no obligation to provide the defense perspective. To be sure, no one gets convicted at the grand-jury stage, but an awful lot of people get indicted this way, and on far less evidence than the country heard today.

 

Moreover, when we say the committee lacks due-process legitimacy, that means it lacks legitimacy as an ultimate finder of fact. It does not mean that we can blithely dismiss any evidence the committee discloses. It does not mean that, because we’d prefer that the evidence not be true, we can dismiss it out of hand because we don’t like the Democrats or the committee process. These witnesses are testifying under oath. There is significant risk to them if they are found to have committed perjury.

 

For now, all we can responsibly do is ask ourselves whether the evidence presented under these deficient procedures seems coherent and credible. Whether it will ultimately hold up when finally challenged — as it very well may be in, say, an eventual criminal trial — is another story. I’ll just say this: When I was a prosecutor, I obtained very good information from sources that were a lot more suspect than the January 6 committee — terrorists, hitmen, fraudsters. Yes, I still had to prove it in court, in the crucible of adversarial challenge and cross-examination. On the other hand, I wouldn’t have elicited it in court unless I had first been convinced that it was true.

 

Cheney ended Tuesday’s testimony by eliciting from Hutchinson that both Meadows and Rudy Giuliani sought pardons. (Trump didn’t give any.) It had been Giuliani, back on the night of January 2, who first asked Hutchinson, “Cass, are you excited for the Sixth? It’s going to be a great day. The president will be there, he’ll look powerful. Ask the chief about it.”

 

Shortly afterwards, she went to the office of the chief of staff, Meadows, and related Giuliani’s words. Meadows was quiet for a while. Finally, he answered, “There’s a lot going on Cass, but things might get real, real bad.”

 

They did. And Trump, who had tweeted that his supporters should come for a “wild” time in Washington, manifestly knew things might get real, real bad. Instead of trying to stop it, he willfully exacerbated the problem — and would apparently have made it worse still if the Secret Service had not been courageously insubordinate.

 

That’s what we learned today. Things will not be the same after this.

Trump Is In Deep, Deep, Deep, Deep Trouble

By John Podhoretz

Wednesday, June 29, 2022

 

The testimony this afternoon of Cassidy Hutchinson, the aide to Trump chief of staff Mark Meadows, cannot be dismissed. If what she has testified to, sworn under oath, is not countered or contradicted by Meadows or Trump’s White House counsel Pat Cippolone—either under oath themselves or eventually before a grand jury—then there is a credible criminal case that Trump violated the law in ways not dealt with by the second impeachment, and from which he would not be shielded by executive privilege. It’s possible her memory is faulty, or that she is a fantasist and that none of this happened. But she has reported directly on things that went on inside the White House and around the Oval Office on January 5 and January 6 that go beyond the merely circumstantial.

 

The case the January 6 committee is building in a far more painstaking manner than anyone could have expected is that Trump knowingly encouraged the formation of and participated in the forward deployment of a crowd he knew was armed. He was told so on January 6. We also know now that Trump had told Meadows to make contact on January 5 with Roger Stone and Michael Flynn, both of whom were communicating with the Proud Boys and the Oath Keepers—some of whose leaders have been charged with seditious conspiracy. We also know that Meadows told Hutchinson he was going to go to the suite personally but she either changed his mind or he did and he called instead. What was said on the call we do not yet know.

 

Hutchinson testified that Trump was told by the Secret Service they were making the crowd at the rally on January 6 go through magnetometers because they were armed. Trump was angered by this, something she knew because she was “in the vicinity of a conversation where I overheard the president say something to the effect of, ‘You know, I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the f-ing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the f-ing mags away.’”

 

He also wanted to drive to the Capitol in the lead and physically tussled with the Secret Service in his SUV when they weren’t going to do so because they could not guarantee his safety. She testified that Cippolone told her if Trump marched to the Capitol,  “We’re going to get charged with every crime imaginable.” And she reported Meadows saying of the chant to hang Vice President Mike Pence that Trump  “doesn’t want to do anything,” and that “he thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”

 

You’re going to hear people call this “hearsay.” It is not hearsay. It is direct testimony of contemporaneous things said in Hutchinson’s earshot about events that were taking place while she was listening.

 

And here’s the rub for Trump. He has so far been protected by Meadows and Cippolone because they have refused to testify to the committee under claims of executive privilege—that Congress does not have the power to force them to speak about their direct conversations with the president or the actions they may have taken under his direct authority because the executive branch is not subordinate to the legislative branch. But they can testify if they choose. If they do not, they will, in essence, be allowing Hutchinson’s testimony to stand. If they do, and they do not say everything she said was a lie, her testimony will stand and be bolstered by them. And if they testify and say their recollections of the days were different, they will have to report in what way they were different—and will not be able to refuse to answer questions they find uncomfortable.

 

But if they do remain silent and Hutchinson’s testimony is not somehow rebutted, they can be made to testify if Attorney General Merrick Garland convenes a grand jury on the basis of the revelations of the January 6 committee and subpoenas them. Failure to testify under those conditions will lead to prison time.

 

I did not think this day would come. I have said as much on our podcast many times. But as a result of the bombshells today, there’s no question now that Donald Trump is staring down the barrel of an indictment for seditious conspiracy against the government of the United States.

 

And I haven’t even gotten to the possible witness tampering!

Reining in the Bureaucrats

By Adam J. White

Wednesday, June 29, 2022

 

Abortion will surely define the Supreme Court’s 2021–22 term. But lately the justices have been reconsidering more than just Roe v. Wade. In case after case, they are reconsidering the modern administrative state’s place in the rule of law. At stake is nothing less than the basic structure and sensibility of modern American government.

 

Administrative law tends to be the stuff of “a pretty dull lecture,” as Justice Scalia once quipped. But recent regulatory cases have brought the Court back to fundamental questions, not just in sleepy cases about esoteric technical statutes, but in front-page conflicts over high-stakes policies. That is especially true this year, in challenges to the Occupational Safety & Health Administration’s Covid-19 vaccine mandate and the Environmental Protection Agency’s climate regulations.

 

These are the latest in a years-long run of cases across Democratic and Republican administrations alike. Those cases raise questions about the assertions of power on the part of executive agencies of government and the procedures by which they assert their right to power. On matters ranging from the Obama administration’s own environmental regulations to the Trump administration’s actions on immigration and the Census to Covid-era regulations issued by states and cities, the justices seem keenly interested in reconsidering or at least recalibrating legal doctrines that once afforded agencies great discretion and independence in creating and enforcing regulatory programs.

 

Nothing in these scattered debates over abstruse legal doctrines such as “Chevron deference” or the “nondelegation doctrine” would come close to Trump henchman Steve Bannon’s threatened “deconstruction of the administrative state.” But each of them could contribute some constitutionally informed limits on the power, discretion, and independence of unelected administrators. Together they might help to reconstruct a more republican, constitutional state.

 

These issues have even begun to affect the decision of whom to appoint to the Court in the first place. Trump’s first two appointments to the high court—Neil Gorsuch and Brett Kavanaugh—were two of the nation’s leading judicial minds on administrative law, and White House Counsel Don McGahn made clear that this was no coincidence. So too with Trump’s appointments to the lower courts, which included administrative-law experts such as the D.C. Circuit’s Neomi Rao and Greg Katsas, and the Fifth Circuit’s Andrew Oldham.

 

Before a case reaches the Supreme Court, the circuit judges’ own decisions help to refine and elevate the issues at stake. And the latest example comes from Judge Oldham and his Fifth Circuit colleague Judge Jennifer Walker Elrod in a wide-ranging challenge to the Securities and Exchange Commission.

 

In 2013, the Securities and Exchange Commission issued an administrative order against George Jarkesy Jr., a Texas-based hedge-fund manager, and Patriot28, an investment advisor company. It alleged that they had committed securities fraud in connection with the offer, purchase, and sale of securities, and it instituted “cease-and-desist” proceedings against them, seeking to prohibit their activities and recoup monetary damages from them.

 

Rather than filing its case directly in federal court, the SEC filed its case in … the SEC itself. It was able to make this choice due to the Dodd-Frank Act of 2010, which expanded the Commission’s power to choose either a federal trial court or the SEC’s own internal court-like proceedings as the forum to punish any person’s violations of certain securities laws. In the latter category, SEC lawyers file their case with an “administrative law judge” or ALJ—not a traditional life-tenured judge, but an agency official who is insulated partly from the agency’s control. The ALJ’s initial decision is subject to appeal to the SEC’s five-commissioner leadership body, which issues the agency’s final decision. And the SEC has made free use of that option.

 

The Wall Street Journal reported in 2015 that the SEC “decided in their own agency’s favor concerning 53 out of 56 defendants in appeals—or 95%—from January 2010 through [March 2015],” a win rate that was “markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.”¹

 

A defendant who loses before the SEC can appeal its final decision to an actual federal court. But on appeal, the courts hear such cases under very deferential standards of review. Invoking the Administrative Procedure Act, the SEC says that courts should “uphold an agency’s decision unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” And under doctrines of judicial deference to agencies’ legal interpretations, the courts generally defer to the SEC’s interpretations of the federal securities laws, so long as the SEC’s interpretation is not contrary to clear legal text or otherwise unreasonable.

 

Jarkesy, the Texas hedge-fund manager, tried to preempt the SEC’s approach. He filed his own lawsuit in the U.S. Court of Appeals for the D.C. Circuit, arguing that the entire process was unconstitutional. But that court, in a unanimous opinion for three judges (including future justice Brett Kavanaugh), concluded in 2015 that Jarkesy needed to let the SEC complete its own process before litigating his constitutional issues in federal court.

 

The SEC’s in-house judge eventually found Jarkesy guilty. The Commission’s leadership upheld the judgment in 2020, ordering him to cease and desist and to pay a $300,000 penalty, and barring him various securities-related activities. It ordered Patriot28 to disgorge nearly $700,000.

 

They, in turn, appealed to the U.S. Court of Appeals for the Fifth Circuit. And in May 2022, the Fifth Circuit produced a very different kind of cease-and-desist decision.

 

The SEC “often acts as both prosecutor and judge, and its decisions have broad consequences,” wrote Judge Jennifer Walker Elrod at the outset of the Fifth Circuit’s decision. “But the Constitution constrains the SEC’s powers by protecting individual rights and the prerogatives of the other branches of government,” she continued. “This case is about the nature and extent of those constraints in securities fraud cases in which the SEC seeks penalties.”

 

Joined by Judge Andrew Oldham (over the dissent of a third colleague), Judge Elrod concluded that the SEC’s in-house adjudication process violated the U.S. Constitution in three ways. First, she wrote, the SEC’s prosecution of securities-fraud cases in its own administrative proceedings violated the Seventh Amendment’s right to civil trial by jury. Second, by giving the SEC unbounded discretion to pursue such cases either in federal court or in the agency’s own proceedings, Congress had improperly delegated its own legislative power to the agency. And third, the SEC administrative law judges’ substantial independence from the SEC’s leadership, and thus from the president himself, impairs the president’s constitutional duty to “take Care that the Laws be faithfully executed.”

 

Each of these conclusions reflects a longstanding debate in the Supreme Court.

 

The first issue concerns federal agencies wielding quasi-judicial powers. The Seventh Amendment guarantees a limited right to trial by jury in civil (that is, noncriminal) cases: “In Suits at common law” with more than  $20 at stake, “the right of trial by jury shall be preserved….” This right follows the Sixth Amendment’s “right to a speedy and public trial by an impartial jury” in criminal trials, and the Constitution’s overarching commitment of “the judicial power” to federal courts staffed by life-tenured judges independent of political officials.

 

Yet from the republic’s earliest years, the Supreme Court has recognized that not all legal controversies need be committed exclusively to the courts, particularly when Congress itself has created the “public rights” at issue. The Court explained this as early as 1855. Congress cannot “withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,” the Court held. But if Congress creates other new “public rights,” then it “may or may not bring [them] within the cognizance of the courts of the United States, as it may deem proper.”

 

This became a much more significant issue in the New Deal era, when Congress began creating many new regulatory and benefits programs and committed their adjudication to federal agencies instead of courts. In recent decades, the Court had to decide the constitutionality of adjudicatory powers Congress had vested in the Commodity Futures Trading Commission, the Patent and Trademark Office, and in the federal Bankruptcy Court (which is a “court” in name but not in actual substance).

 

In Jarkesy’s case, the Fifth Circuit held that the SEC’s adjudication process was unconstitutional because the agency was deciding the modern equivalent of common-law fraud claims, which is in the proper purview of civil juries. Now, it must be said that Congress had written legislation prohibiting securities fraud, and the SEC argued that this made them “public rights” that could be decided by the SEC itself instead of juries. But the Fifth Circuit saw those laws as doing little more than codifying the old fraud claims that private parties had long litigated in civil lawsuits. The mere fact that Congress took a common-law claim and wrote it into the U.S. Code cannot be enough to remove the common-law claim from the courts, the Fifth Circuit held.

 

Its conclusion on this point echoed recent concerns about both the decline of juries and the rise of administrative adjudicators. Judge Jed S. Rakoff, a prominent member of Manhattan’s federal district court and the recent author of Why the Innocent Plead Guilty and the Guilty Go Free—and no one’s idea of a Federalist Society poster child—warned in a 2014 speech that the SEC’s in-house adjudication of fraud cases was making the agency “a law unto itself.”

 

Both an opinion in the case involving the bankruptcy court written by Chief Justice Roberts, and a dissent by Justice Gorsuch (which Roberts joined) in the Patent and Trademark Office case, raised alarms about the state of agency adjudication more broadly. “Ceding to the political branches ground they wish to take in the name of efficient government may seem like an act of judicial restraint,” they warned in Gorsuch’s dissent, “but enforcing Article III [of the Constitution] isn’t about protecting judicial authority for its own sake. It’s about ensuring the people today and tomorrow enjoy no fewer rights against governmental intrusion than those who came before. And the loss of the right to an independent judge is never a small thing.”

 

The second issue in the Jarkesy case, the “nondelegation doctrine,” is arguably the most significant administrative-state issue percolating in the Supreme Court today. The theory is premised upon the Constitution’s Article I, which provides that all legislative powers herein granted shall be vested in Congress. This grant of power, the argument goes, cannot be redelegated to the executive branch. If Congress grants an agency effectively unlimited discretion, then it violates the constitutional “nondelegation” rule.

 

Though sensible in principle, the nondelegation doctrine has proved extremely difficult to reduce to a simple judicially enforceable rule, let alone one clearly commanded by the Constitution’s own broad terms. In 1825, the Marshall Court observed that Congress cannot “delegate to the courts or to any other tribunals powers which are strictly and exclusively legislative,” but it also conceded that “the line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made and power given to those who are to act under such general provisions to fill up the details.”

 

Nearly two centuries later, that line has proved incredibly difficult to draw. Only twice in its history has the Supreme Court held that a statute unconstitutionally delegated legislative power to an agency. In those cases—both decided in 1935—the Court held that Congress’s legislation lacked an “intelligible principle” to limit the agency’s discretion. Finding such an “intelligible principle” is actually an extremely low bar for Congress and agencies to clear; in an era when the U.S. Code is replete with provisions empowering agencies to regulate “in the public interest” or in similarly vague terms, a statute must have virtually no substantive meaning to fail the “intelligible principle” test.

 

But that is what the Fifth Circuit found here, in the securities laws that empower the SEC to choose either a federal court or the SEC’s own tribunal as the forum for litigating fraud cases. “Congress offered no guidance whatsoever,” the court emphasized. “It instead effectively gave the SEC the power to decide which defendants should receive certain legal processes (those accompanying Article III [judicial] proceedings) and which should not.”

 

It will be interesting to see how the Supreme Court grapples with this point if it takes the case. Administrative agencies have long enjoyed significant discretion in choosing among possible procedural vehicles. In a seminal ruling as far back as 1947, the Court held that the SEC’s decision to use either in-house adjudication or rulemaking as its vehicle for policymaking “is one that lies primarily in the informed discretion of the administrative agency.” It is not hard to imagine the Court giving agencies the same discretion to choose between in-house adjudication and the federal courts as the vehicle for punishing securities fraud.

 

But that was 1947. In recent years, five of the current justices have signaled their interest in bolstering the nondelegation doctrine. Justice Thomas has been calling for at least some kind of reform since 2001; he was joined, to varying degrees, by Gorsuch and Roberts and by Alito in 2019, and by Kavanaugh a year later. Meanwhile, lower-court judges and conservative legal scholars have been writing vigorously on the subject. Indeed, the Fifth Circuit’s Judge Oldham was writing on the subject as far back as 2006.

 

It is unclear how this debate will sort out, and conservatives should take heed of Justice Antonin Scalia’s own longstanding wariness of judges striking down legislation under a constitutional doctrine that is merely inspired, not spelled out, in the Constitution’s specific words. “A doctrine so vague, it may be said, is no doctrine at all, but merely an invitation to judicial policy making in the guise of constitutional law,” Scalia wrote in a 1980 essay that later echoed through his judicial opinions.

 

Yet in an era when administrative agencies are wielding their power in ever more significant and unprecedented ways—such as the financial agencies’ new climate policies—the justices and judges will continue to hear arguments to reinvigorate the nondelegation doctrine, or at least to apply the gentle “intelligible principle” standard more rigorously, as the Fifth Circuit has here.

 

And the Fifth Circuit’s third ruling against the SEC also echoed recent Supreme Court trends. The lower court held that the SEC officers responsible for hearing the agency’s in-house cases are unconstitutional, because they enjoy too much legal independence from the president and the SEC’s leadership.

 

The officers are called “administrative law judges.” As noted earlier, they are not actually “judges” in the constitutional sense, appointed by the president and confirmed by the Senate with life tenure. Rather, they are agency personnel who enjoy a measure of independence from the agency’s control. Initially such positions at the SEC and other agencies were called “examiners” or “hearing examiners,” until Congress gave them the more imposing title of “administrative law judges.” (Scalia recounted this history in another of his pre-judicial writings on the administrative state, titled bluntly, “The ALJ Fiasco—A Reprise.”)

 

When agencies have the power to decide significant matters in their own in-house proceedings, there is great sense in wanting to insulate the adjudicators from political pressure. Of course, that is precisely why the Constitution gives real independence to actual judges. But for executive-agency personnel, the Constitution prioritizes accountability.

 

Thus the Constitution empowers the president to appoint agency “officers” with the Senate’s advice and consent, though Congress can empower the agency heads to appoint mere “inferior officers.” And the Court has read the president’s constitutional “executive power” and his duty to “take Care that the Laws be faithfully executed” as requiring that the president or the agency’s head retain full power to fire officers who wield significant power.

 

Along those lines, in 2018 the Supreme Court struck down a statute governing the appointment of the SEC’s ALJs. Justice Kagan, joined by the Court’s conservatives, concluded that the ALJs’ powers rendered them “officers” under the Constitution, and not merely employees; thus their appointment by SEC staff was unconstitutional. Similarly, on the removal issue, the Court held in 2009 that it was unconstitutional for Congress to create another independent agency within the SEC itself; if the SEC enjoys some independence from the president, then the ensuing double layer of independence between the sub-agency and the president actually impedes the president’s ability to use his own constitutional executive powers.

 

The Fifth Circuit found that these two lines of cases pointed together toward the unconstitutionality of the SEC administrative law judges’ independence from political oversight. If the ALJs are “officers” who can be appointed only by the constitutional process (per the 2018 precedent), and if the SEC cannot have independent officers within it (per the 2009 precedent), then the ALJ’s independence must be unconstitutional. As the Fifth Circuit put it, “two layers of insulation impedes the President’s power to remove ALJs based on their exercise of the discretion granted to them.”

 

Ever since the Supreme Court struck down the process for appointing SEC administrative law judges in 2018 (in the Lucia v. SEC case, authored by Kagan), there has been broad recognition that the ALJs’ removal protections might be found similarly unconstitutional. Of all the Fifth Circuit’s three holdings in the May 2022 case, this seems the one most likely to be affirmed by the Supreme Court, should it take up the matter. Again, if the cases coming before these ALJs need a truly neutral and independent decision-maker, then the Constitution offers a simple solution: Send those cases to the fully independent judges of the federal courts.

 

***

 

The combat over these three issues—transferring the legal claims to officers instead of courtroom juries, making those officers independent of the president, and delegating the agency unbounded discretion to choose to pursue its cases either in court or before its own officers—reflects a recent judicial unease with decades-old doctrines that empowered the agencies.

 

Other current debates reflect similar concerns. For many years, precedents have directed judges to give great “deference” to an agency’s interpretation of statutes or regulations. Indeed, those precedents long enjoyed the support of conservative judges, who saw the dangers in judicial micromanagement of complex or political policy judgments. But now conservative judges are more immediately concerned with agency overreach. Similarly, Chief Justice Roberts and perhaps others are increasingly concerned with the disruptive uncertainty fostered by the wild swings in regulatory policy from one presidential administration to the next.

 

Earlier agency-friendly doctrines reflected a much different zeitgeist in the New Deal era and subsequent years. Particularly with enactment of the Administrative Procedure Act of 1946, Congress attempted to standardize the agencies’ process for making regulations or deciding cases; it made the former look more legislative, and the latter more judicial. It did so for laudable reasons, including efficiency and accountability.

 

But nearly eight decades later, we see that era’s deeper effects. Congress made agencies increasingly a substitute for actual legislatures and actual judges. Congress, meanwhile, increasingly recedes into an oversight role—less a legislature than a supreme court of public opinion.

 

And while we tend to think of this trajectory in terms of presidential and executive power, it is important to note how many of the new cases are coming from the so-called independent regulatory commissions—bipartisan, multi-member institutions including the SEC, the Federal Trade Commission, and more. Nearly one and a half centuries ago, Congress created their forerunner, the Interstate Commerce Commission, to serve not as an arm of executive power, but as an adjunct to the judicial power. Its purpose was to resolve railroad disputes through case-by-case adjudication, akin to a court but with expert commissioners instead of general-duty judges. Congress later gave the ICC power to make regulations, and it soon created the Federal Trade Commission to play similar quasi-judicial and quasi-legislative roles.

 

Surely these commissions were never genuinely free from politics or ideology. But their basic structure, their independence from presidential administrations, and (at first) their tendency toward case-specific adjudication instead of sweeping rulemaking, did set them apart from the more political, more energetic agencies directly under the president’s control.

 

Today, however, the independent commissions seem keen to become the most powerful and politically consequential agencies of our time. The SEC, chaired by Gary Gensler, is asserting sweeping authority over corporate governance, even asserting itself as a climate regulator. Meanwhile the FTC, chaired by Lina Khan, is undertaking an unprecedented set of new rulemaking initiatives, seeking to transform much more than just antitrust policy, and in increasingly political tones.

 

Watching these and other independent regulatory commissions assert the right to impose controls along partisan lines, one gets the impression that their current leaders see themselves playing with house money—the only question being how far they might push their policy line before a court limits their gains.

 

The Fifth Circuit’s decision, and others like it in recent cases, ought to remind them that the agencies might wind up with less power than they started with. Until recently, these matters were considered well settled. Now they are being unsettled—by newly ambitious agencies and by judges alarmed at the scope of their ambitions.

 

¹ It is not easy to parse the numbers, or to interpret them. A single case might include many claims, any of which can produce partial wins and losses, making win-loss rates hard to pin down. Furthermore, it’s hard to compare the relative merits of cases that the SEC brings to an actual court as opposed to the ones it keeps in-house. If the SEC sends easier cases to actual courts but keeps the harder cases for its internal process, then the relative win rates might actually understate the SEC’s home-court advantage.

NATO Formally Invites Sweden, Finland to Join Alliance

By Diana Glebova

Wednesday, June 29, 2022

 

NATO formally invited Sweden and Finland to join the alliance Wednesday at a summit in Madrid, Spain, in the midst of security concerns due to the Russia-Ukraine war.

 

The announcement comes after Turkish president Recep Tayyip Erdogan lifted his veto after a weeks-long stalemate over the negotiations. The decision will now rely on final ratification from all 30 member states.

 

“The accession of Finland and Sweden will make them safer, NATO stronger, and the Euro-Atlantic area more secure. The security of Finland and Sweden is of direct importance to the Alliance, including during the accession process,” NATO said in a statement.

 

NATO Secretary General Jens Stoltenberg called the decision “historic,” and thanked the leaders for their agreement.

 

Turkey signed a memorandum with Finland and Sweden on Tuesday confirming Erdogan would support the nomination of the two Nordic countries into the alliance.

 

The Turkish president previously raised concerns about Sweden and Finland harboring terroristic activity, stating in a Saturday phone call that Sweden should “make concrete changes in its attitude towards [the] PKK/PYD/YPG terrorist” organizations through the “fulfillment of the extradition and deportation requests.”

 

In a separate phone call, Erdogan told Finnish president Sauli Niinistö that a stated that “a mentality that disregarded terrorist organizations which posed a threat to an ally within NATO would not comply with the spirit of alliance and friendship.”

 

Turkey claims members of the Kurdistan Workers Party (PKK) orchestrated a coup attempt against the Turkish government in 2016.

 

Erdogan also requested Sweden lift its weapons embargo which was imposed after Turkey’s 2019 incursion into Syria.

 

“Our joint memorandum underscores the commitment of Finland, Sweden and [Turkey] to extend their full support against threats to each other’s security. Us becoming NATO Allies will further strengthen this commitment,” Niinistö said in a statement on the memorandum.

 

Russian missiles struck a shopping center in central Ukraine on Monday with over 1,000 people inside, Ukrainian president Volodymyr Zelensky said. The EU formally accepted Ukraine as a candidate to join the bloc on Thursday, over four months after Russia’s invasion.

The Uses and Abuses of ‘Democracy’

By Kevin D. Williamson

Tuesday, June 28, 2022

 

Thanks to five decades’ worth of work by legal reformers and pro-life activists, the Supreme Court has taken the purportedly radical step of deciding that, henceforth, abortion laws will be made by lawmakers in their legislatures, rather than by judges in their chambers. That return to democracy has, of course, been lamented as announcing a “crisis of our democracy” as well as heralding our “declining democracy,” according to Representative Alexandria Ocasio-Cortez. That assault on democracy — a very, very weird “assault on democracy” that consists of asking the people to vote on a contested political issue through their elected representatives — makes of these United States a “cautionary tale,” according to the “analysts” over at the Washington Post, the sometimes daft pages of which offer a helpful reminder that the first word in analyst is anal.

 

What does it actually mean, this “democracy” of which we perpetually speak?

 

For progressives, “democracy” is a very plastic word that means, “what we call it when we get what we want.” Examples: The Supreme Court overrules state abortion laws on an obviously pretextual and obviously specious constitutional claim and overrules the democratic outcome in favor of the private judgment of a half-dozen unaccountable law professors? That’s democracy! At least according to Democrats. But when the Supreme Court later corrects itself and returns the question to the democratic institutions — to the people and their state legislatures? That, in case you hadn’t noticed, is the end of democracy as we know it. What about using employment as an instrument of social coercion to silence people with unpopular political opinions? Workplace democracy, of course. What if a business owner decides that he doesn’t want to perform some service that is at odds with his views? The end of democracy, my God! If a Republican insists a presidential election was stolen and that the president is illegitimate, that is an obvious assault on democracy, and probably treason. If Democrats insists a presidential election was stolen and the president is illegitimate? That’s democracy in action, and dissent is the highest form of patriotism.

 

Funny thing, this “democracy.” Funny and kind of stupid.

 

Democracy, meaning “rule by the people,” is a word that entered English in the late 16th century to describe a contrast with the other main forms of government in the Western world, monarchy and aristocracy. Monarchy and aristocracy, along with the example of the republics of Renaissance Italy and that of the Roman dictatorship, were very much on the minds of the American founders. Democracy did not have an especially inspiring track record at the time of our nation’s Founding, and the word democracy had not taken on its current moral hue. Democracy was a low thing, in their judgment, a near cousin to anarchy.

 

The most democratic forms of government in Western political history had been (in theory) democracies pure and simple, in which all political power was (in theory) held by the people themselves, who met in assemblies that were open to all citizens and voted on the great questions of the day. Hence, democracy has at times been construed to mean “majority rule.” Even though these democracies were hemmed in in various ways (for example, by religious tradition) that kind of democracy was unstable, often just a short step away from the Hobbesian bellum omnium contra omnes, and it often was indistinguishable from its cousins, ochlocracy (“mob rule”) and demagoguery (the exploitation of democratic passions by power-seekers). The Founders did not think much of democracy thus understood, and you can read quite pointed rejection of “democracy” in the works of John Adams, among many others. The word kept its ugly and anarchic connotations for years, such that when Abraham Lincoln wrote contemptuously of the “corrupt Democracy,” everybody knew what he meant — he meant the traitors and the slavers in the political party that still had and has the effrontery to call itself “Democratic.”

 

You won’t find any mention of democracy in the Declaration of Independence. The closest you will find to that is many complaints about the English king’s abuse of the law and the legislatures. The indictment of King George included:

 

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

 

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

 

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

 

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

 

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

 

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

 

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

 

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

 

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

 

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

 

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

 

This was not a democratic indictment, but rather one oriented more specifically toward liberty and the rule of law.

 

Those colonial legislatures were not exactly democratically elected, either — beyond the exclusion of women, African Americans, and the unpropertied, the idea was that such assemblies would be chosen from among the leading men by the leading men. The U.S. Senate, whose members were appointed by the various state legislatures rather than popularly elected, was once meant to be roughly the same thing. Adams sought a “balanced” government, meaning one that incorporated the best aspects of monarchy in the presidency, the best aspects of aristocracy in the Senate and other undemocratic institutions, and the best aspects of democracy in the House of Representatives. Democracy, in that respect, is merely useful, not a moral necessity in its own right. I believe that is still the right way to think about it.

 

When it is working well, our political order is indeed “balanced,” though not in exactly the way Adams preferred. Democracy is one constituent, one ingredient in the recipe. The other big one is liberalism, the idea that the rights and liberties of the people should be the central concern of government. The American Revolution was to a large degree a liberal revolution, one oriented toward reclaiming and fortifying what the Founding Fathers understood to be their rights as Englishmen — and, while it leads to some semantic confusion, American conservatism is fundamentally liberal: What American conservatives seek to conserve is a political and social order founded in Anglo-Protestant liberalism. This imagines a social order in which the private sphere accounts for the most important parts of life — piety, family, community, economy — and the public sector, particularly the national government, exists mainly to protect the liberty and the property of the people.

 

This is in contradistinction to the paternalistic model of government, which is still very much with us among the authoritarians and which demands that the state be a father and a teacher, a moral tutor and a moral disciplinarian, rather than a disinterested enforcer of laws and contracts. Democracy often acts as a sort of camouflage for paternalistic government, investing some political figure (in our case, almost invariably the president) with quasi-mystical powers as the personification of “We the People.” Strongman democracy is in practice very much like ordinary monarchy or dictatorship, and the strongman usually outlasts the democracy. It is democracy without liberalism.

 

Liberalism opposes and limits democracy in certain important ways: For example, the Bill of Rights and other provisions of the Constitution put some important considerations, such as freedom of speech and the right to keep and bear arms, beyond the reach of ordinary politics. Neither Congress nor the president can take away your constitutional rights, which, in the original understanding of the American order, are not granted by the Constitution by only formally recognized therein — being granted by God, which is why those rights cannot be legitimately trampled by any government, no matter how popular or democratic — Americans are “endowed by their Creator with certain unalienable rights.”

 

We sometimes call the usual Western mode of government liberal democracy, but the mix of liberalism and democracy is a contested matter. Libertarian theorists such as F. A. Hayek argued that the only real case for democracy is prudential, that a liberal (meaning libertarian) dictatorship would be entirely preferable to an illiberal democracy, and that we rely on democratic institutions only because there are not a lot of liberal dictators to be found. (Hayek’s inclination toward liberal dictatorship led him into occasional error, such as his excessive enthusiasm for the dictator Augusto Pinochet, who enacted some very liberal, positively Hayekian economic policies. Margaret Thatcher once felt compelled to write Hayek a letter warning him against being seduced by Pinochet and his methods.) In our time, there is a pronounced tendency toward illiberal or anti-liberal democracy, not only among such exotic paternalistic specimens as Viktor Orbán but here in the United States, too. The Trumpist element is an example of that, as is the circle of crackpot Catholic fantasists typified by Sohrab Ahmari and others of that ilk. To get some idea of the flavor of that, consider that Ahmari, who purports to be some kind of Christian conservative, despises the Federalist Society, the constitutionalist organization most directly responsible for the successful legal campaign against Roe, as — and here I will quote Ahmari directly — the “jackals of Mammon,” because the Federalist Society works toward a legal framework for economic liberty as well as an authentically constitutional approach to abortion.

 

I myself do not believe the ladies and gentlemen of the Federalist Society to be the jackals of Mammon. (I do not think that Ahmari really believes that either: Whether he is in his secular-Muslim phase or his atheist-neocon phase or his ultramontane Catholic phase, his true religion is and always has been notoriety.) It is true that liberal regimes sometimes by their liberalism enable vice. It is also true that illiberal regimes sometimes by their illiberalism enable vice, as every third goat in Wardak knows. The problem is the vice, not the liberty. But, then, my interest is in building up institutions, not in burning them down — unfashionable, I know.

 

What Hillary Rodham Clinton, Nancy Pelosi, Alexandria Ocasio-Cortez, and the cretins running around in “handmaid” costumes have in common with Donald Trump, Rudy Giuliani, the deranged January 6 cretins and the imbecilic American Greatness cretins who want you to believe that the January 6 riot was an “inside job” staged by the FBI and anti-Trump Republicans is that for all their talk about democracy — or elections, or the Constitution, or patriotism, or social justice, or whatever — their only real politics is the politics of the bawling baby: “Baby want!” For the partisans of Roe v. Wade, “democracy” means that they get what they demand — which is taking democracy out of the picture altogether when it comes to abortion law. But the abortion fanatics are not alone in this.

 

The Dobbs decision is, in a sense, a return to democracy — the very contentious issue of abortion will be debated as an issue in democratic elections and sorted out through democratic votes by democratically elected representatives in democratic legislatures. But it is in a more important and more profound sense a victory for the rule of law and for liberty — the Roe regime was not, and never could have been, legitimate, representing as it did the usurpation of legislative power by judges who have no entitlement to wield it. Overturning the laws of the states on specious grounds is every bit as much an assault on our liberal-democratic constitutional order as overturning the results of a presidential election on specious grounds would have been. The American people — not as individuals but as a people — have consented to live under our own particular Constitution, which actually says what it actually says, and we have not consented to live under a government of polite progressive opinion as communicated through the law schools and the legal profession. Legitimacy begins with consent.

 

In that sense, there was much more at stake in Dobbs than abortion, as prime and bloody an issue as that is.