The Supreme Court now has five votes to sabotage the next Democratic presidency.
Beginning in the latter half of the Obama administration, Federalist Society gatherings grew increasingly fixated on diminishing the power of federal agencies to regulate businesses and the public — an agenda that would severely weaken seminal laws such as the Clean Air Act and the Clean Water Act.
On Monday, Justice Brett Kavanaugh signaled that he is on board with this agenda.
Kavanaugh’s opinion is not especially surprising. The Trump appointee to the Supreme Court keynoted the Federalist Society’s annual banquet earlier this month and he spent much of the Obama years frustrating the Environmental Protection Agency (EPA) and other federal agencies. But his opinion is nonetheless significant because it shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power.
This is a classic example of one of the main modern day differences between Democrats and Republicans, which has been amplified by the recent "impeachment" hearings. Yes, Virginia, there is a deep state, and that is exactly what the Democrats want.
As usual, the liberal point of view on anything "legal" is to ignore whatever underlying principle exists and concentrate instead on the end political result. In this case, the underlying legal issue is how much inherent power should unelected Federal workers be provided.
For conservatives, that answer is basically the less the better. Conservatives believe that policy is to be set by the elected leaders. Congress will write laws, and to the degree that there is ambiguity, those questions should be answered by the elected President and Vice President as carried down to the appointed department heads, which is carried out by the rank and file employees.
For liberals, that answer is the polar opposite. They would largely prefer to think of Federal agencies as running independent of the President and the elected leaders of the executive branch. Liberals realize that departments (such as the EPA) are generally loaded with other liberals, with liberal views, and liberal ideas. They prefer that this unelected bureaucracy be provided a grand amount of power, making sure that certain areas of the Government "always" remain "liberal" and outside the control of the elected leaders that the Constitution declares to be in charge
One reason why is that Democrats tend to support robust regulation while Republicans do not. An anti-regulatory doctrine inherently favors conservatives.
A second reason is that the Supreme Court is controlled by Republicans. So, even if it is possible for the Nondelegation Doctrine to be applied in a neutral way, this Supreme Court seems unlikely to do so.
Meanwhile, the biggest problem facing Democrats for the foreseeable future is Senate malapportionment. Currently, the Republican Senate “majority” represents 15 million fewer people than the Democratic “minority,” and that’s a significant Republican gain over the previous Senate. In the Senate that confirmed Gorsuch and Kavanaugh, the Republican “majority” represented almost 40 million fewer people than the Democratic “minority.”
The idea here is that our elected Government is inherently "unfair" to Democrats and therefore the only way to combat that is to take the power from the elected leaders and place it in the hands of the liberal rank and file... or what would be commonly referred to as the "deep state" made up of Federal employees who do not believe that they do or should answer to Presidents and elected leaders whom they do not personally agree with.
