Yes, it’s been a good week for conservatives, one of the best I can remember since Trump was elected in 2016, and we have much to celebrate tomorrow. We should not, however, gloat too much or get too cocky. Teddy Roosevelt’s political kaleidoscope changes fast, in ways we cannot possibly predict.
At the risk of a little friendly gloating, conservatives have a lot to celebrate this Fourth of July, progressives not so much after suffering the most bruising, demoralizing week in recent memory. The big debate between President Joe Biden and former President Donald Trump has garnered most of the headlines given the sight of the most powerful person in the world melting down in front of almost 50 million viewers, but a series of Supreme Court decisions on Thursday, Friday, and this Monday was equally devastating, perhaps even more so given how ephemeral elections are in the grander scheme of things. While the two January 6th related rulings, the first siding with defendants over the Justice Department on repackaged charges stemming from the Enron meltdown in 2007 and the second formalizing the obvious point that Presidents enjoy a certain immunity, have generated more headlines, the decision to overturn the 1984 Chevron precedent is undoubtedly the most consequential since Roe v. Wade was up-ended in 2022. Simply put, the Supreme Court has radically reconsidered the relationship between the Executive and Legislative Branch and their offspring in the administrative state, and in doing so, has upheld basic Constitutional separation of powers principles that have been ignored for far, far too long. At issue was how far the alphabet soup of agencies that currently comprise the federal government can exceed their original legal mandates, as we have seen over and over again in recent years when agencies like the Occupational Health and Safety Administration suddenly find the power to mandate vaccines or the Environmental Protection Agency proclaims entirely new dominion over ornamental backyard ponds. Under existing precedents, these and other agencies effectively govern themselves, deciding on their own what is in their purview regardless of the law, writing regulations that bear the force of the law although they do not originate with the legislature, and arbitrating their own disputes and appeals process. Putting this another way, if you run afoul of a regulation created by an agency, the agency itself decides your fate, determining how to interpret its own regulations, not an independent body like the courts – that is the umpire who is supposed to be responsible for fairly calling balls and strikes is actually part of the opposing team in a perversion of even simple fairness.
Why the Supreme Court ruled this way in the first place given it completely runs afoul of bedrock principles, allowing bureaucrats to write their own laws and serve as their own judges, is anyone’s guess, but the reality that this scheme has always been blatantly unconstitutional should have been obvious from the beginning. Consider President Biden’s recent move to effectively ban the sale of many gas-powered vehicles by increasing federal mileage standards past the technical point where traditional vehicles can comply, reorganizing and re-imagining an entire industry by executive fiat. Under our system of government, Congress and Congress alone has the power to regulate interstate commerce, and if they so choose, they can ban the sale of internal combustion engines. Politically speaking, however, they would never do so for reasons that should be overwhelmingly obvious. Thus, the government’s timeless urge to encroach further and further into our lives, organizing the economy and everything else as they see fit, is continually checked by requiring legislators to earn the votes of their respective constituencies on a regular basis. In comparison, the regulation writers in these agencies never stand before voters or anything close. They are not elected, and therefore are not accountable to the will of the people, even though their regulations wield the force of law. In principle, according to the Chevron doctrine, the EPA could simply ban the sale of gas cars entirely simply by increasing the mileage or emissions requirements higher than possible, something the Biden Administration has come perilously close to doing by their own admission, and they could only be stopped by either another president rewriting the regulations or a vote in Congress overturning the regulations. The first scenario results in chaos, confusion, and a lack of the stability required for the economy and society at large as the equivalent of laws are continually rewritten whoever is in office. The second reverses the regular order of our government, turning Congress into a negative body rather than a positive one, meaning lawmakers will spend more and more time undoing what’s been done rather than doing what needs to be done.
Progressives, perhaps needless to say, have largely been happy with this arrangement because it allows for the expression of unchecked government power, fully knowing that the staffers at these agencies aren’t exactly libertarians and to date, have never found a field they didn’t believe could benefit from their regulations. As a result, the number of regulations and their associated costs have continued to increase at a near geometric rate outside of the presidency of Donald J. Trump. The Mercatus Center at George Mason University has put together a video demonstrating the scope of this growth since 1950. In 1950 itself, federal regulations filled about thirteen 700 page books. By 1970, there were the equivalent of 73 books. By 1990, regulations had grown to over 170 volumes, and by 2013 there were 235. This has been accompanied by an expansion of the agencies themselves, compounding the problem. The National Association of Manufacturers estimates the cost of this regulatory burden at over $3 trillion per year, which doesn’t even consider the steady erosion of freedom. Equally needless to say, they cannot come out and say directly that the goal of this entire enterprise has always been power, whether over the economy or our lives. Instead, they claim there is a fundamental need for so-called unbiased experts to rapidly regulate anything and everything in the modern age, despite what the actual law creating the regulatory body in question may read. As Kimberly Wehle, writing for Politico, put it two years ago, “the viability of federal regulations as the ongoing bread-and-butter means of passing laws that span virtually every aspect of American life, from workplace safety and environmental protection to financial regulation and national child welfare” is essential for the survival of the country. In her view, Congress is simply too dysfunctional to do its job, and the agencies are all we have, “Because our polarized Congress is shockingly dysfunctional when it comes to substantive policy.” In other words, agencies are the new legislative bodies whatever the Constitution may claim.
The Biden Administration’s decision to pursue a first of its kind vaccine mandate under the guise of occupational health and safety is a perfect example. The debate surrounding the Occupational Health and Safety act didn’t remotely consider vaccines, much less mandates. The goal was safer working conditions and workplace safety in general, but somehow progressives felt this underpinning extended to mandating vaccines for all workers, only to be shocked when the Court disagreed. The New Republic’s Matt Ford laid out the progressive position pretty succinctly at the time, writing “More ominous is the basic mindset that girds the conservative justices’ thinking in both cases. In its view, the executive branch cannot use its existing powers imaginatively to address novel matters of public concern.” Last week, the Supreme Court extended recent decisions into a formal precedent, insisting that they cannot do that by any means. I would suggest this was for obvious reasons as well, when our separation of powers simply doesn’t allow any government body to take on lawmaking, executive, and judicial authority on its own. To illustrate the end result of this by absurdity, why not simply create a body to serve as the entire Executive Branch, give it powers over everything, and eliminate the presidency? Chief Justice John Roberts, who wrote the majority decision, stated it all too plainly, “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Somehow, however, progressives insisted this was an expansion of the Court’s power, but the reality is executive power has been expanding for decades beyond the original Constitutional Order and the Court is only blocking that growth, reestablishing what never should have been permitted in the first place.
It’s more than fitting that a win for freedom came so close to the Fourth of July, but the Court wasn’t done yet. In two other momentous decisions for conservatives alluded to earlier, they ruled that presidents enjoy some form of qualified immunity for official acts taken while in office and blocked some charges against January 6th because they exceeded the scope of the original criminal statute. In that decision, even progressive Ketanji Brown Jackson, a former public defender with unique insight on how prosecutors can twist the law, was able to note the obvious, “Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis. We recognize this intuitive fact—that there is a certain category of conduct the rule is designed to prohibit—because we recognize, albeit implicitly, that the drafters of this rule have included these particular examples for a reason. We understand that, given the preceding list of examples, this rule was adopted with a clear intent concerning its scope.” Both of these decisions impact pending cases against former President Donald Trump, but progressives reserved particular scorn for the finding of immunity, complete with imagining nonsensical scenarios of President Biden assassinating his opponent with these supposedly newfound powers. British-American “journalist” Medhi Asan questioned on X, “So the Supreme Court just okayed Biden – hypothetically – assassinating Donald Trump? Am I following their legal reasoning correctly?” Judd Legum, a self-appointed media watch dog, made a similar claim, “The Supreme Court just ruled that if the President ordered Seal Team 6 to assassinate his political opponent, he would be immune from criminal prosecution. This isn’t a joke.” These and others were undoubtedly reacting to the dissent from Justice Sonya Sotomayor, who bizarrely insisted, “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. In every use of official power, the President is now a king above the law.”
As if we needed more evidence that progressives are immune to irony and lack self-awareness in general, perhaps Justice Sotomayor can tell us whether she believes Presidents Bill Clinton and Barack Obama should both be prosecuted? President Clinton notoriously sold a pardon to Marc Rich while President Obama ordered the assassination of a US citizen by drone without due process. As I have opined before, the ruling on immunity was obvious from the beginning. Of course presidents have it. They would not be able to function without it and the only reason the Court has not had to issue a prior decision was because no one was insane or corrupt enough to charge a former Chief Executive with never before seen crimes committed while they were in office. In fact, the majority’s reasoning builds upon the fallout from the Richard Nixon debacle, where the Court found a limited civil immunity for official acts in 1982. It was only their blind hatred of President Trump that prevented them from seeing reality, which brings us back to where we started after his triumphant debate performance. Yes, it’s been a good week for conservatives, one of the best I can remember since Trump was elected in 2016, and we have much to celebrate tomorrow. We should not, however, gloat too much or get too cocky. If this last week has taught us anything, Teddy Roosevelt’s political kaleidoscope changes fast, in ways we cannot possibly predict. There will be bad weeks to come whatever we may wish, making it important to savor the good times when we can, celebrate these wins for freedom, and keep on fighting for our values. Happy Fourth of July, to both conservatives and progressives, of course.
Confessions of a Conservative Atheist 