The progressive movement is in turmoil after a string of Supreme Court decisions put power back in the hands of the legislature and protected rights enshrined in the Constitution. The sort of things we used to call democracy with a Big-D, but those old rules no longer apply and now democracy means whatever they claim at the moment to consolidate power.
Progressives have been screaming about Big-D Democracy a lot lately, or more precisely their belief that America doesn’t have enough of it and might be on her way to losing it entirely. The recent rallying cry has been “minority rule,” suggesting that the United States is a tyranny of the minority forever overcoming the will of the majority. The cry has been repeated after almost every Supreme Court decision this term. Last week, the Court ruled that the Environmental Protection Agency doesn’t have the authority to create sweeping new changes in policy that aren’t specifically authorized by the legislation that created the agency in the first place. At issue were new regulations on carbon dioxide first issued by President Obama. These regulations proposed that the agency enact a cap on carbon emissions completely on its own without the passage of any new laws, but as the Court found, similar proposals had been debated in Congress and rejected each and every time. The text of the decision, authored by Chief Justice John Roberts, recites several examples, “American Clean Energy and Security Act of 2009, H. R. 2454, 111th Cong., 1st Sess.; Clean Energy Jobs and American Power Act, S. 1733, 111th Cong., 1st Sess. (2009). It has also declined to enact similar measures, such as a carbon tax. See, e.g., Climate Protection Act of 2013, S. 332, 113th Cong., 1st Sess.; Save our Climate Act of 2011, H. R. 3242, 112th Cong., 1st Sess.”
In other words, our elected lawmakers, or more precisely our democratically elected lawmakers, already considered these schemes and chose not to implement them. Therefore, the EPA, which exists only because Congress legislated the department into existence in the 1970s, doesn’t have the authority to enact what that same Congress has repeatedly chosen not to enact. Bear in mind that no who works for the EPA is elected or accountable to voters, meaning they are a completely un-democratic body with or without the Capital D. In the Court’s view and mine, elected representatives trump the opinion of the unelected bureaucrats. This process should be pretty straightforward and easy to understand in democratic terms: The people vote for their representatives. The representatives vote for legislation. The alternative is the tyranny of an arbitrary administrative state or a Court enacting policies the representatives rejected multiple times. Strangely, this is precisely what progressives have now taken to calling democracy. Following the decision, the historian Heather Cox Richardson took to Twitter, writing “The Supreme Court has gone rogue. We are in a full blown Constitutional Crisis. Congress must act. And we must pressure Congress to act, while it still can. #TheMajority.” The author of a climate change alarmist tract, Overheated: How Capitalism Broke the Planet, Kate Aronoff, concurred. “Minority rule in the United States is a threat to life on earth,” but how is minority rule applicable here in any way, shape, or form?
The faction comprising government bureaucrats is certainly a minority. The belief that they can enact policy on their own without legislation from Congress means that this minority is in charge regardless of the will of the majority. Putting this another way, progressives are specifically calling for minority rule themselves, but lack the self-awareness to see it. Some would likely insist that the problem lies with the Senate or the Electoral College, where the combination of equal representation by state puts West Virginia on the same footing as California and the filibuster limits the policies a slim majority can enact, but even then the argument completely falls apart upon the slightest examination. The American Clean Energy and Security Act of 2009 and the Clean Energy Jobs and American Power Act were both debated shortly after President Obama took office when Democrats enjoyed a filibuster-proof majority in the Senate and a significant majority in the House. Either legislative proposal could’ve passed without a single Republican vote, and yet the Democrat supermajority chose to reject them in a classic example of majority, one-party rule. Likewise, Democrats right now control the Senate thanks to Vice President Kamala Harris’ tie-breaking vote. They could have removed the filibuster if they so choose to pass either the Green New Deal or its mutant offspring, Build Back Better. They have not been able to do so because two Senators from their own party, Joe Manchin and Kyrsten Sinema do not support the rule change, leaving them 2 votes short of the 50 vote threshold for a tie-breaker. There is no majority for these proposals as we speak, or at least not a majority to eliminate the filibuster for this purpose. If a majority existed as they claim, they could do it right now, literally while I am typing this post.
We know this because none other than Senator Elizabeth Warren said as much, claiming they need “two” more Senators to change the filibuster rule, essentially admitting that they do not currently have the majority they claim. After the Court’s ruling against the EPA, Senator Warren got somewhere close to the truth on Twitter, writing, “Our planet is on fire, and this extremist Supreme Court has destroyed the federal government’s ability to fight back. This radical Supreme Court is increasingly facing a legitimacy crisis, and we can’t let them have the last word.” In fact, this almost the same argument the Court has made across their recent decisions. They are well aware the proper role of a Court is not to have the final say on the details of any policy. On the contrary, their role is strictly to rule on the Constitutionality of laws and executive actions, not to create the actual policy for either the EPA, restrictions on abortion, or anything else. They are not dictating what our lawfully elected representatives can do except to keep them within the framework of our Constitutional Order. If Congress wanted to pass a cap and trade or carbon limit scheme, it certainly could. Congress can legalize abortion right now as well. The Court has taken no position on the merits of either policy, and neither supported nor opposed any law. Their sole position is that Congress and/or the states need to act to have their will heard as the last word on these and other matters.
This is the democratic process we are so frequently lectured about in 21st century America. It is neither the Court’s fault nor their responsibility that Democrats have failed to successfully pass the laws they claim are desperately needed. The fault ultimately lies with them, especially when leaders of their own party like President Barack Obama decided that abortion was not a top priority when they held power. “I believe that women should have the right to choose,” he told a news conference following his first 100 days in office. “But I think that the most important thing we can do to tamp down some of the anger surrounding this issue is to focus on those areas that we can agree on.” At the time, he chose not to move forward with a law codifying Roe vs. Wade, known as the Freedom of Choice Act. Instead, he sought to “reduce the number of unwanted pregnancies that result in women feeling compelled to get an abortion, or at least considering getting an abortion, particularly if we can reduce the number of teen pregnancies.” Today, however, members of his party like progressive firebrand Alexandria Ocasio-Cortez insist removing the filibuster is just the beginning of other unspecified reforms to enact the policies they desire. She described the ruling as “Catastrophic” on Twitter and then continued to claim “A filibuster carve out is not enough. We need to reform or do away with the whole thing, for the sake of the planet.” What this might look like, of course, is a complete mystery when Ms. Ocasio-Cortez and her fellow progressives have been unable to pass any legislation in this regard. How can we determine what is indeed majority rule without any actual vote? Are we supposed to just let the executive branch of government do whatever it wants, even after Congress debated and rejected some of the very same proposals being advanced? Perhaps I should’ve written “whatever progressives want” because some of these very same people were ecstatic in recent memory whenever a judge or the Supreme Court blocked one of President Trump’s plans on administrative or other grounds.
Last year, I noted the odd way in which many progressives celebrate the Fourth of July. The same trend continued this year complete with middle-fingers for America, but the underlying tone was much darker and more dangerous to the very democracy they claim to be interested in protecting. You cannot have Democracy without votes and rules. No one seriously argues that the votes were not had an the rules were not followed. All the members of the Supreme Court have been confirmed following the normal process. All the cases have been heard the same. The Senate has been seated after an election they claim was the most secure in history. The bills they want to pass have been debated over the decades. The problem is that they either didn’t or the Court didn’t rule in their favor, not that anything untoward or illegal led to this point. If they feel there was some chicanery, progressives can take their case back to Court or they could pass the legislation they want, but instead they’ve taken aim at both sides of the equation, arguing that their proposed policies are so popular that they needn’t be voted on at all. In the cases where they feel they need actual votes, the rules, everything from the filibuster, to the Senate itself, to the electoral college, are rigged against their supposed majority, transforming the United States into a tyranny of the minority. Their solution isn’t to build a majority large and broad enough to enact these policies in the regular manner, voting on them in the legislature for implementation by the executive. This process isn’t nearly radical enough. Instead, they propose to empower the executive to do whatever progressives want and simultaneously neuter the court, also to whatever progressives want. To do so, they will say and do whatever is required, from branding a primary branch of government “illegitimate” to inventing new, never before seen definitions of majority rule. Tell me again who are the real authoritarians this Fourth of July? Is it those claiming Democracy is whatever they say it is or those who believe in our Constitutional Order as it has been understood for over 200 years now?