Adam Smith, ISL – RCIT section in Israel/Occupied Palestine, 12.07.2024
The supreme court has been on a ruling spree towards the end of its term. While the headline that has captured the most headlines by the liberals is the immunity for the president – which is clearly a reactionary ruling, even the liberal Judges said that a President is not a King – it is arguably the lesser ruling in terms of effects on the working class.
This ruling gives absolute immunity for the President for official acts and acts on the outer perimeter and qualified immunity for unofficial acts. Furthermore, official acts cannot be used as evidence to show, for example, bribery, in the case of an unofficial act. In practice, virtually everything can be designed as an official act. [1] The truth is that presidents can already do virtually what they want, and it is not very difficult to masquerade everything as official. The standing memo, since the era of Nixon, for the Justice Department is not to prosecute ex-presidents. The issue of civil liability was already decided in 1982. [2]
The liberals are against the decision, but also against it for the fact that the facade of American democracy has been lifted. This is very much similar to the passing of the Nation-State law in Israel in 2018.
The more worrying issue is the overturning of the Chevron Deference.
“And then he says that the Administrative Procedure Act, which is a law that’s about 80 years old, goes back to the 1940s and was really a revolutionary piece of legislation in terms of providing for judicial review of agency action – he says that that statute says that the courts shall decide all relevant questions of law. And he says that must mean that there can be no deference to the judgments of administrative agency in the normal course.
This is significant because he lodges his holding in a statutory framework and not a constitutional framework. He doesn’t say that the separation of powers prohibits this. He says that the statute says that courts shall say what the law is. And he leaves a little bit of wiggle room for deference to agencies in very specific cases.” [3]
While theoretically if all laws could pass with perfect clarity, many times they are not, and even if they are clear, the courts can find a way to strike them with interpretations they don’t like. The Chevron Deference has been already on the decline for some time. This is also ironic as it was originally used by the Reagan Administration to allow for more creative interpretation of targets to reduce greenhouse emissions. Now when it is used by more Democratic Administrations, it is being overturned. The slave did his job, now the slave can go, to use an old expression.
“In other actions Monday, the court dealt another severe blow to the power of government agencies to regulate. The key question in the case, Corner Post v. Board of Governors of the Federal Reserve, was when exactly the clock starts and stops ticking for challenges to government regulations. By a vote of 6-to-3 along ideological lines, the court ruled against the government, and sided with business interests in elongating the period for challenging a final government regulation.
Writing for the conservative majority, Justice Amy Coney Barret found it troubling that under the government’s contrary view, “only those fortunate enough to suffer an injury within six years of a rule’s promulgation” could sue while “[e]veryone else — no matter how serious the injury or how illegal the rule — has no recourse.”
The upshot of the court’s holding is that that businesses, individuals, and corporate entities can challenge federal regulations long after they were initially promulgated and still be within the statute of limitations. That would appear to put on steroids last week’s decision abolishing so-called Chevron deference, which for 40 years deferred to reasonable agency regulations when a law is ambiguous. [4]
Together with the Corner Post decision, this would essentially allow the Supreme court to legislate from the bench, allowing them to put their own interpretation of the laws. The corner post ruling, while appears to be a protection for private citizens from big government, in reality is a way for big business to further delay and bog down in courts any regulation, since they can just open a new business to start the clock running again. Many decisions are based on the Chevron Deference, for example, when FINRA – a self “regulation” body, sues the SEC for easier regulation, the SEC often cites the Chevron Deference. Same thing for the EPA, which already had its power clipped by the Supreme court in 2022.
Another case is one criminalizing homelessness. Again, the reality is already that homelessness is heavily criminalized, but this is a final nail in the coffin.
“Attorneys for homeless people in Grants Pass argued that the city’s regulations were so sweeping, they effectively made it illegal for someone without a home to exist. To discourage sleeping in public spaces, the city banned the use of stoves and sleeping bags, pillows or other bedding” [5]
At the same time, the court released Jan 6th insurrections who were charged with obstruction:
“Justice Barrett — a Trump appointee — joined wrote that the provision in question “is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway. The Court, abandoning that approach, does textual backflips to find some way—any way—to narrow” it.” [6]
On the executive side, if Trump wins, the Republican Party have Project 2025:
“Donald Trump has lately made clear he wants little to do with Project 2025, the conservative blueprint for the next Republican president that has attracted considerable blowback in his race for the White House.
“I have no idea who is behind it,” the former president recently claimed on social media.”
Many people Trump knows quite well are behind it.”
….
The Project 2025 document claims four main policy aims: restore the family as the centrepiece of American life; dismantle the administrative state; defend the nation’s sovereignty and borders; and secure God-given individual rights to live freely.
…
Project 2025 proposes that the entire federal bureaucracy, including independent agencies such as the Department of Justice, be placed under direct presidential control – a controversial idea known as “unitary executive theory”. [7]
This project seeks to place many more, if not all, of the civil service as direct political appointments of the President. This plan also attacks abortion rights, LGBT rights, immigration, and abolishing the Department of Education.
As the ruling class feel comfortable lifting the facade of democracy, this will mean a further shift to the right, possibly opening a new era in US history. Now is the time to fight it!
For example, the Supreme Court is more open then before about both being corrupt and legalizing corruption:
“The bid-rigging scheme was a classic of the genre. A small Rust Belt city needed new garbage trucks. Its mayor and two of his donors needed money. The mayor, a struggling mortgage lender, owed years’ worth of back taxes; the donors were two brothers desperate to save the truck dealership they’d spent the past few years running into the ground. So the mayor fixed things to steer the garbage-truck contracts to the brothers, a million-dollar cushion under their failing dealership. Thankful for this good turn, they cut the mayor a check for $13,000 ostensibly for some consulting work, the substance of which was never clear.
The feds caught on to this arrangement, and in 2021, the mayor, Jim Snyder, was tried and convicted on corruption charges. On Wednesday, in Snyder v. United States, the Supreme Court threw out the verdict in a 6–3 vote, with the three liberal justices dissenting. The majority cut in half the federal law Snyder was convicted of violating. That law, the Court held, applies to bribes promised or dispensed before any official action is taken but not to “gratuities”—rewards, as the majority put it, “given as a token of appreciation after the official act.” The majority reached its conclusion by pointing to various indicators that, in its view, showed Congress never intended the law to dictate whether state and local officials can or can’t accept gratuities. As far as federal law is concerned, state and local officials are now generally free to accept gifts small and large—$13,000 checks, lavish vacations, cash-stuffed valises—from the beneficiaries of their actions in office. (State and local laws still apply to them, but only a small fraction of corruption cases are brought by state prosecutors.)” [8]
In a moment of truth, about a different case: “Last year, the Court—again unanimously—threw out the conviction of a top New York gubernatorial aide who, while on temporary leave to run then-Governor Andrew Cuomo’s re election campaign, had taken $35,000 from a real-estate developer to help him secure a lucrative state contract. If federal law criminalized what the aide had done, Justice Samuel Alito worried, then “it could also be used to charge particularly well-connected and effective lobbyists.” [9]
This is not surprising as the corrupt conservative Supreme court judges like Thomas like to accept gifts themself:
““He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas,” the reporters write. “And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.”
Those trips meant Thomas was in contact with powerful corporate executives, including from Verizon and PricewaterhouseCoopers, and political activists, such as “Leonard Leo, the Federalist Society leader regarded as an architect of the Supreme Court’s recent turn to the right,” the reporters write.
“By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said,” the reporters write.
Crucially, those trips were not listed among Thomas’ annual financial disclosures, even though gifts worth over US$415 usually must be reported, the reporters found. Despite such disclosure rules, before the ProPublica investigation the Supreme Court did not have a formal ethical code of conduct.” [10]
Down with Project 2025!
Down with the reactionary US Supreme Court!
Don’t Vote for Biden or Trump!
Endnotes:
[1] https://www.npr.org/2024/07/01/nx-s1-5002157/supreme-court-trump-immunity
[2] https://en.wikipedia.org/wiki/Nixon_v._Fitzgerald
[3] https://www.npr.org/2024/06/29/nx-s1-5023013/after-roe-v-wade-supreme-court-overturns-another-major-legal-precedent
[4] https://www.npr.org/2024/07/01/nx-s1-5002157/supreme-court-trump-immunity
[5] https://www.npr.org/2024/06/28/nx-s1-4992010/supreme-court-homeless-punish-sleeping-encampments
[6] https://www.npr.org/2024/06/14/nx-s1-5005999/supreme-court-jan-6-prosecutions
[7] https://edition.cnn.com/2024/07/11/politics/trump-allies-project-2025/index.html
[8] https://www.theatlantic.com/ideas/archive/2024/06/supreme-court-corruption-snyder-v-united-states/678809/
[9] Ibid
[10] https://gijn.org/stories/propublica-exposed-ethics-scandals-us-supreme-court/