If Democrats are worried about stopping Trump’s overreach, the Court is their friend.
If Democrats are worried about stopping Trump’s overreach, the Court is their friend.
C ommenting on the fallout from the 2024 elections, Representative Pramila Jayapal (D., Wash.) earlier this week said the quiet part out loud.
“Am I championing getting rid of the filibuster now when the [Republican Party] has the trifecta?” Jayapal said to reporters after the GOP won control of the presidency and the Senate and was on track to hold on to its majority in the House of Representatives. “No. But had we had the trifecta, I would have been.”
Jayapal had spent years calling the filibuster a “racist” remnant of “Jim Crow” America, so consider her recent admission of dishonesty refreshing. In the past, politicians at least harbored a modicum of shame when exposed as hypocrites, but now one can call a man “America’s Hitler” and become his choice for vice president. There is no longer any price to pay for deeply holding a conviction only up until the second it is no longer politically convenient.
To wit, with Republicans in full control of the government, it will be only a matter of time before Democrats experience a deathbed conversion on the value of the U.S. Supreme Court, which may become the final line of defense against Trump’s aggressive plan to remake America through the administrative state.
In June, the Court overruled the 40-year-old Chevron doctrine, which effectively granted judicial powers to executive agencies when enforcing a disputed federal administrative regulation. In a 1984 ruling, the Court set up a process for interpreting departmental rules: If Congress’s intent in passing a law is clear, then the regulation enabled by the law must be executed as written. But the justices added a second step. If the law is ambiguous, and the agency’s interpretation “is based on a permissible construction of the statute,” then the agency’s interpretation should determine how the regulation is to be executed.
Chevron was a breathtaking expansion of executive reach and a clear violation of Article III of the Constitution, which vests judicial power with courts, not executive agencies. And yet it would go on to become one of the most cited administrative-law decisions, haunting American jurisprudence for four decades before a fishing company that operates off the New England coast had finally had enough.
Last year, the Supreme Court, in Loper Bright Enterprises v. Raimondo, sided with a family fishery that was fed up with the government’s both mandating that the company host a human “monitor” on its fishing boats and forcing it to pay up to $700 per day for that privilege. Loper Bright argued that the rule, which cut its profits by about 20 percent per day, wasn’t authorized by the law regulating fisheries. (If you think a fishing boat is cramped as it is, try operating one with the federal government on board.)
In siding with the fishery, the Court finally ended the expansive deference to federal agencies. But since being a partisan in political media means always pretending the other party will never have control of the levers of government you defend, once the decision came down, progressives flopped like one of Loper Bright’s boat-deck herrings.
Kate Shaw, a law professor and New York Times opinion writer, complained that ending Chevron deference would “fundamentally transform major aspects of the health, safety and well-being of most Americans.”
“The Supreme Court has now decreed that it, rather than agencies staffed by individuals with deep subject matter expertise and answerable to presidential appointees, will be the final arbiter of the meaning of every statute passed by Congress,” Shaw sniffed. In granting courts the ability to determine whether something is, you know, legal, she argued that the Loper Bright decision is “antidemocratic while claiming democratic warrant.” (In her mind, “democracy” is upheld when an unelected bureaucrat decides judicial matters, but not when judges who are nominated by an elected president and confirmed by elected senators offer rulings.)
Shaw wasn’t alone. Ian Millhiser at Vox called the decision a “a massive power grab” that the Court “will come to regret.” In typically understated fashion, he bleated, “Welcome to hell, justices of the Supreme Court. It is a hell of your own making.”
Well.
Undoubtedly, “hell” for liberals would have been granting Trump’s nominee to head the Department of Homeland Security, South Dakota governor Kristi Noem, full judicial powers to implement the president’s long-promised mass-deportation plan. Or letting Elon Musk and Vivek Ramaswamy unilaterally judge their budget-slashing actions as heads of the newly dreamed-up Department of Government Efficiency to be constitutional. Or allowing Representative Matt Gaetz (R., Fla.), the reported nominee for attorney general, to decide the legality of the Department of Justice’s criminal procedures.
In fact, with Republicans in the House and Senate trending full MAGA, it may be the Supreme Court that serves as the most robust bulwark against Trump’s more egregious plans. And despite the chest-beating of progressives, the majority-conservative justices have not in the past been afraid to rule against the former and future president.
They all but laughed out of court a lawsuit brought by Trump supporters challenging the results of the 2020 presidential election. They created a temporary roadblock in front of Trump’s travel ban that affected primarily Muslims before eventually letting it go through. When Trump’s Bureau of Alcohol, Tobacco, and Firearms proposed a ban on bump stocks for guns, the Court blocked it (ironically, not exactly the outcome liberals were looking for). The justices further blocked Trump’s efforts to immediately end the Deferred Action for Childhood Arrivals (DACA) program, protecting children of illegal immigrants who were brought here as minors.
Even in the highest-profile case of the last year, in which the Court granted presidents limited immunity for private actions taking place while in office, Trump wasn’t fully victorious. While Democrats like to say the Court granted Trump “full immunity,” the justices did no such thing; they simply said public conduct in office was immune and that steps must be taken to determine whether actions are public or private. This fell well short of the full immunity Trump’s attorneys had sought, and all but one of the federal criminal charges against Trump stood.
The overtly partisan Supreme Court that troubles the liberals’ fever dreams simply doesn’t exist. During conservative justice Amy Coney Barrett’s nomination hearings, Senator Mazie Hirono of Hawaii, surrounded by large posters of people with serious diseases, claimed that Trump appointed Barrett through a “hypocritical and illegitimate process” in “keeping his promise” to install the “deciding vote to take health care away from millions of people.”
Months later, Barrett sided with the 7–2 Court majority in rejecting a challenge to the Affordable Care Act’s individual mandate. The reaction from Democrats was . . . Amy Coney who?
With Trump once again in full control of the government, progressives should embrace the Supreme Court and its retrenchment of the administrative state. Thanks to the Court’s efforts, Trump’s appointees no longer get to serve as judges in their own trials. In overturning Chevron, the Court took Justice Neil Gorsuch’s advice to erect “a tombstone no one can miss.” Democrats should show up every day to dust it off and mow the grass.