You can pretend it was just a tit-for-tat after Senate Democrats nixed the mechanism for lower-level nominees if you like, though that ignores that then-Senate Majority Leader Mitch McConnell was engaged in an unprecedented campaign to block as many of then-President Barack Obama’s nominations as possible, an assault on the Executive’s constitutional prerogatives and a particularly egregious manifestation of the power politics that have governed the Senate since McConnell’s ascension to leadership. (This also conveniently ignores that the Senate is already an extraordinarily undemocratic body without the filibuster. Senate Republicans have not represented a majority of citizens since 1996, but have controlled the chamber for much of that time. In the current 50-50 Senate, the Democratic caucus represents 40 million more people.) Much of the Republican agenda, such as it is, does not require changing the rules. Tax cuts, for instance, can be rammed through via the reconciliation process. But McConnell was perfectly willing to change the filibuster rules to make absolutely sure of getting control of the Supreme Court, just as Senate Republicans will adjust the process whenever they deem it necessary should they retake control.
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First up, there’s the possibility they will push the Major Questions Doctrine.
But back to the Supreme Court itself, because there’s another case on the docket right now that points to why McConnell would do anything to control it, including steal a seat in another assault on the executive’s constitutional powers. In West Virginia v. Environmental Protection Agency, the question at hand is whether the Obama administration had the authority under the Clean Air Act to enact the Clean Power Plan, which aimed at cutting carbon emissions from power generation. It’s an interesting question of executive power that the Court could seize on, as it has before in Citizens United and others, as an opportunity to introduce a sweeping new policy regime. The decision here could simply be that this specific executive order outstripped the statutory authority granted by an act of Congress. Instead, as Elizabeth Kolbert detailed in The New Yorker this week, the 6-3 conservative majority could use the case as a crowbar to crack open the American regulatory state.
Senate Republicans nixed the filibuster for Supreme Court nominations because control of the Court offered the opportunity to shape American law—and thus, American life—for decades through justices who are unaccountable to the public and nearly impossible to remove from office. It’s not just that the 6-3 conservative majority can now veto any policy it does not like. It can, and will, make policy on its own.
This coal plant will have to answer to Neil Gorsuch.
According to the major-questions doctrine, an agency can issue a regulation that would have significant political or economic ramifications only if it has explicit instructions from Congress to do so. Major questions is a challenge to the prevailing approach, known as the Chevron doctrine…[which] is critical to government regulation as we know it: often, federal rules are written in response to broad directives from Congress to, say, protect air quality or worker safety.
This seems like a way to shift regulatory power from the executive to the legislature. But in practice, it’s closer to the Court granting itself the authority to throw out huge chunks of regulatory policy. Congress barely functions as a budgeting and judge-confirmation body, never mind as an actual legislature that makes regulatory policy at a sufficiently granular level to survive this new standard. As Kolbert reminds us, Congress has not passed a significant piece of environmental regulation since 1990.
Believe it or not, though, the Major Questions route could be something like the compromise position for the Court to take. Other amicus briefs rolling in have set their sights on the Non-Delegation Doctrine. According to this way of thinking, Congress is barred by the Constitution from delegating powers that could be construed as legislative to the executive branch…As Justice Elena Kagan noted, in a 2019 decision, non-delegation has the potential to render most of contemporary government unconstitutional, “dependent as Congress is on the need to give discretion to executive officials to implement its programs.” … The practical effect of the Court’s insisting that it lay out its intentions in detail before executive agencies issue regulations to address new threats—major or otherwise—would be to prevent those rules from being written.
This is way more valuable to the people Mitch McConnell represents than whatever’s in Politico Playbook today, and it illustrates why he would engage in such a brazen campaign to seize control of the courts. The torpedoing of Merrick Garland was not just the culmination of a scorched-earth policy on judicial nominations, it was part of an effort to shift power between the branches of government—in which the Supreme Court itself may now participate. Executive power has spun way out of control in recent decades with the acquiescence of Congress, but the solution is not to hand everything over to the judiciary. That’s not just some philosophical dispute—the actual effect is to carry out Steve Bannon’s vision of deconstructing the administrative state. In terms of regulatory policy, the strategy is to obstruct the legislature and govern through the courts by dismantling the executive’s capacity to make policy within the limited framework that does exist. Everything in this article, you may have noticed, is to the benefit of people who like the American status quo. Nobody likes dysfunction and obstruction more than a coal baron. Jack Holmes
Jack Holmes is the Politics Editor at Esquire, where he writes daily and edits the Politics Blog with Charles P Pierce.
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