Certainly, many Americans must be thinking that there is something much more important at stake here than what did or did not happen at some house in a D.C. suburb in the summer of 1982. Any of us would be forgiven for thinking that, Francis Menton writes in the Manhattan Contrarian.
The Answer: A Simple KISS – The Supreme Court.
As Roger Pilon of the Cato Institute’s Center for Constitutional Studies notes, there are now two jurisprudential schools:
- Liberals urging “judicial activism,” to promote “evolving liberal values.”
- Conservatives urging “judicial restraint,” making peace essentially with the New Deal Court’s deference to the political branches.
But neither camp is grounded in the Constitution as understood during our first 150 years. Both have bought into the New Deal court’s rejection of limited government—liberals because they like it, conservatives because they think it a lost cause.
Yet those vast government programs still deeply divide us.
This proposition, however, is not symmetrical, writes the Manhattan Contrarian. Democrats almost by definition control the bureaucracy at all times.
Take a look at the election results of the District of Columbia – a 90.9% vote for Hillary and a 4.1% vote for Trump.
The Permanent Bureaucracy
That tells you all you need to know about the political orientation of the permanent bureaucracy. This phenomenon stems from a fundamental fact of life, which is that people who go to work for the government inherently believe in the mission of the bureaucracy and that they are accomplishing something important in the world. They are not going to be talked out of this belief.
Sure the Republicans can put a few new people at the top. But those people will always face a guerrilla war of resistance from the permanent bureaucracy. Elected Democrats will never face this resistance. And then, add in the effect of the courts.
The Courts Block Initiatives
As examples, Francis Menton details how the courts have blocked President Trump’s initiatives. Until readers see a list of these blockages, he suggests, most of us are unlikely to realize the extent of the blockage.
- One of Trump’s first executive orders was what became known as the “travel ban,” temporarily restricting travel to the U.S. from seven countries pending more thorough vetting. Lower federal courts sequentially struck down three versions of this executive order, until the third version finally reached the Supreme Court in June 2018. The Supremes ruled (5-4 on a classic conservative-liberal split) to uphold the President’s order.
- In 2012 President Obama initiated the “DACA” program (“Deferred Action for Childhood Arrivals”) to allow people brought to the U.S. as children to stay by government forbearance of enforcement, even though the individuals had no legal status in the country under existing immigration law. President Trump announced cancelation of the program in Fall 2017, which essentially meant simply going back to enforcing the immigration laws as written. Multiple courts thereupon struck down Trump’s effort to one degree or another, with one federal judge in Washington ruling in January 2018 that Obama’s DACA program must be fully reinstated. This one continues to play out in the courts.
- Trump attempted a rollback of an Obamacare requirement that employers cover the cost of employee contraception when they provide health insurance. A federal judge in Pennsylvania blocked that.
- Trump issued three executive orders affecting federal employees, including restricting the performance of union work on the taxpayer dime, and making it easier to fire non-performing workers. A federal judge in DC struck those down just last month.
- Out in Oregon, one of the cases that I have nominated for “stupidest litigation in the country” is about to proceed to trial in October. This one is the case brought by a group of minors seeking to have the court enjoin all use of fossil fuels in the country on the ground that the threat of “climate change” violates the plaintiffs’ constitutional “right to life,” or something like that. Efforts of the Trump administration to get the Ninth Circuit to stop this circus have failed. Believe it or not, the judge is thought likely to be issuing some kind of relief for the plaintiffs at the end of the trial.
- Meanwhile, the other group of cases that got my “stupidest litigation” nomination — the cases brought by various municipalities against oil companies for the supposed “nuisance” of allowing CO2 to go into the atmosphere — have mostly been dismissed. But don’t forget that these things can be appealed. Any one of the multiple appeals courts that gets one of these cases can theoretically order a case to trial, and lead to a multi-billion dollar verdict. Ultimately, only the Supreme Court stands in the way of total insanity.
- The Obama-era Clean Power Plan, seeking to double your cost of electricity to save the world from maybe something like 0.01 deg C of “global warming.” I covered that one just yesterday. Pretty much everybody thinks that the DC Circuit, once it gets around to ruling, will order the Trump administration to follow the Obama administration’s regulation, and not to rescind it. Again, only the Supreme Court ultimately stands in the way.
Why the Supreme Is So Important
The real question is, will elections where Republicans get elected be allowed to have any effect? Mr Menton hopes that Americans are gradually getting some idea of why Democrats see control of the Supreme as so important.
If the Democratic party faction controls the bureaucracy and the courts, it can very substantially block most important initiatives from a Congress and Presidency, even though those branches be fully in Republican hands. And thus, the combination of bureaucracy and courts can render elections close to meaningless, or at least, can render meaningless those elections where Republicans get elected. But it takes both the bureaucracy and the courts to achieve this result.
We are very much in the midst of battle, warns Roger Pilon.
The growth of government has politicized so much in life, including those matters that once were sorted out privately, under the easily understood principles like property and promise that allowed for liberty to flourish. When politics determines the ordinary issues of life—jobs, retirement, health care, day care, education, housing and more—and the political battles over those end up in the courts, it’s no wonder that we’re in a battle for the Supreme Court, and that those who fear losing the battle resort to desperate means.
The founders understood this, which is why they left most of life beyond government’s reach. It’s time to start rethinking whether we want to be “all in this together,” dependent on a government that is increasingly dysfunctional and going broke.
However the issues immediately before us are resolved, we need to focus on the bigger constitutional questions underlying them.
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