The Supreme Court Won’t Stop Executive Overreach

Presidential appointees, business advocates complain, routinely overstep the authority given them by Congress in how they write and enforce rules. With the addition of Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, business sees the Supreme Court as a reliable bulwark against executive branch overreach.

.. Judge Kavanaugh believes presidents, unlike regulators, are owed considerable deference, especially on national security and law enforcement. That’s significant because Mr. Trump is now using national security to justify his own economic interventions, especially on trade.

.. Much of the controversy over the administrative state harkens back to 1984, when the Supreme Court decided, in a case involving the Environmental Protection Agency, Chevron U.S.A. Inc. and an environmental group, that when a law is unclear, the court should defer to a federal agency’s interpretation of that law.

.. Courts have cited Chevron deference, as this doctrine is known, to grant wide latitude to regulatory agencies, from the EPA to the Department of Labor and the Federal Communications Commission. Many conservatives blame it for a decadeslong transfer of power to the executive branch. They questioned the legality of President Barack Obama’s routine use of executive authority, such as limiting greenhouse gas emissions and suspending some deportations of illegal immigrants, to sidestep Congress.

.. “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” he wrote in 2016 in the Harvard Law Review.
It encourages the president, regardless of party, to “be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”

.. Both parties have agencies they love to hate: For Republicans, it’s the EPA and the Consumer Financial Protection Bureau; for liberal Democrats, it’s now Immigration and Customs Enforcement. For both, it’s the Internal Revenue Service or the Justice Department when the other party controls the White House. In each case, a change of president is usually enough to change the agency’s behavior.

.. Yet even as he rolls back the administrative state, Mr. Trump has pushed the boundaries of presidential authority. He has imposed steep tariffs on imports of aluminum and steel and is planning the same on cars, citing his national security authority under a little-used 1962 law. Mr. Trump is also weighing forcing utilities to buy more coal and nuclear-generated power, also on national security grounds. 

In both cases, national security appears to be a pretext to shore up economically beleaguered industries.
..  “There is a pronounced dichotomy between Kavanaugh’s view on deference to agencies as opposed to his view on deference to presidents,” says Jonathan Turley, a law professor at George Washington University. He says Congress has been progressively marginalized by the expanding authority of both federal agencies, and presidents; Judge Kavanaugh seems to oppose the first and encourage the second.

.. Judge Kavanaugh’s concurring opinion, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in 2015 that the National Security Agency could collect an individual’s telephone “meta data.” Because the purpose was preventing terrorist attacks, he said, it didn’t violate the Fourth Amendment’s prohibition on unreasonable search and seizure.

Breaking from GOP orthodoxy, Trump increasingly deciding winners and losers in the economy

President Trump is increasingly intervening in the economy, making decisions about corporate winners and losers in ways that Republicans for decades have insisted should be left to free markets — not the government.

.. On Friday, citing national security, Trump ordered the Energy Department to compel power-grid operators to buy from ailing coal and nuclear plants that otherwise would be forced to shut down because of competition from cheaper sources.

.. The order came one day after the president imposed historic metals tariffs on some of the country’s strongest allies and trading partners. Now the Commerce Department is further picking winners and losers as it weighs thousands of requests from companies for waivers from the import taxes.

“It replaces the invisible hand with the government hand,” said Mary Lovely, a Syracuse University economist. “You’re replacing the market with government fiat.”

.. The president has chastised individual companies, second-guessed the U.S. Postal Service’s business arrangement with Amazon and put pressure on Boeing and Lockheed Martin over the cost of their products.

.. Of course, Trump isn’t the only one to tinker with market forces. President Barack Obama backed subsidies for wind and solar power. And about 30 states have adopted laws mandating minimum purchases of renewable energy.

Obama also won passage of a health-care reform package that created winners and losers. Republicans criticized the Affordable Care Act at the time for forcing people to make purchases through the individual mandate.

.. Sen. Patrick J. Toomey (R-Pa.) said that he and Sen. Mike Lee (R-Utah) would co-sponsor legislation “to rein in the executive branch’s power to impose unilateral tax increases like these.”

.. “One of the reasons tariffs are not good policy in general is that it is a form of corporate welfare,” said Stephen Moore, an economist at the Heritage Foundation. “You’re saying consumers will have to pay more so this auto company or steel company or aluminum company stays in business. It’s the ultimate form of picking winners and losers.”

Obama was right: He came too early

Former Obama White House official Ben Rhodes, in his forthcoming memoir, tells of a moment of doubt the first African American president had after the election of Donald Trump on a campaign dominated by white grievance.

“Sometimes I wonder whether I was 10 or 20 years too early,” President Barack Obama said in the passage, first reported thisweek by Peter Baker in the New York Times.

I hate to say it, but I think the former president was correct.

Ten or 20 years from now, America will be much closer to the majority-minority nation it is forecast to become in 2045. A racist backlash to a black president wouldn’t matter as much.

But what was naively proclaimed in 2008 as post-racial America was instead kindling for white insecurity, and Trump cunningly exploited and stoked racial grievance with his subtle and overt nods to white nationalism. He is now leading the backlash to the Obama years and is seeking to extend white dominion as long as possible, with attempts to stem immigration, to suppress minority voting and to deter minority census participation.

.. These are the death throes of white hegemony. And they are ugly.This week alone:

.. ● Trump had no criticism for Roseanne Barr after her rebooted ABC show was canned because she called former Obama adviser Valerie Jarrett a cross between the Muslim Brotherhood and “Planet of the Apes.” Instead, Trump used the occasion to demand an apology of his own from ABC for unrelated slights.● Trump rallied supporters in Nashville with many of the race-based themes of his campaign, saying Mexico is “going to pay for the wall and they’re going to enjoy it.” He led the crowd in denouncing Latino “animals” who join the MS-13 gang, and repeated his message to black people: “What the hell do you have to lose?”

● Trump pardoned Dinesh D’Souza, the Indian American provocateur who had called Obama a “boy” from the “ghetto” and a “grown up Trayvon,” had dismissed Rosa Parks, and was prolific in his use of the n-word. This follows Trump’s previous pardon of anti-immigrant provocateur Joe Arpaio.

● Trump’s new secretary of state, Mike Pompeo, hosted the previously shunned Hungarian foreign minister, following his government’s reelection on a campaign of anti-Semitism and anti-Muslim demagoguery. The ruling party won by demonizing the Jewish Hungarian American George Soros, a Holocaust survivor.

.. And, finally, a new study by academic researchers in California found that opposition to welfare — another Trump fixation — has grown among white Americans. The researchers concluded that “whites’ perceptions that minorities’ standing is rising can produce periods of ‘welfare backlash’ ” — but only if they believe the programs primarily benefit minorities.

.. the main predictor of support for Trump is racial anxiety — far more than economic anxiety.
.. he tax cut, in the first quarter, contributed toan 8 percent increase in corporate earnings but only a 1 percent increase in consumer spending — the lowest increase in five years — and even though coal jobs are disappearing faster than before, wages remain stuck and the promised return of manufacturing hasn’t happened.

Senate confirms a former coal lobbyist as Scott Pruitt’s second-in-command at EPA

If embattled Environmental Protection Agency chief Scott Pruitt were to leave office, the reins of the agency could fall to a former Senate aide and coal mining lobbyist who was confirmed 53 to 45 Thursday afternoon to become second-in-command at the EPA.

Andrew Wheeler worked at the EPA more than two decades ago and later served as an adviser to Sen. James M. Inhofe (R-Okla.), a high-profile critic of climate science who famously brought a snowball to the Senate floor as a prop. For the past nine years, Wheeler has been a lobbyist for a variety of companies, including Appalachian coal mining firm Murray Energy.

.. Wheeler, who works for the lobbying firm Faegre Baker Daniels, received $370,000 in fees last year from Murray Energy

.. Murray asked Perry to increase payments to coal and nuclear plants supplying electricity to the Midwest and Appalachia. Perry tried to implement such a plan, but independent electricity regulators rejected it.

 .. “It is critically important that the public understand Wheeler’s career as a lobbyist for some of the worst actors in the energy industry,” Keith Gaby, a spokesman for the Environmental Defense Fund, said in an email this week. “Andrew Wheeler running EPA would go far beyond having an administrator overly influenced by lobbyists — the head of EPA would be an energy industry lobbyist.”
.. “The mission of the EPA is to protect human health and the environment, but Andrew Wheeler has dedicated his career to weakening environmental protections, serving as a lobbyist for numerous fossil fuel clients, including one of our country’s biggest polluters, Murray Energy
.. Karpinski pointed to a measure Inhofe co-sponsored known as the Clear Skies Act, which would have undermined the landmark Clean Air Act. Inhofe was a vocal critic of climate-change science, which he said was “the greatest hoax” ever foisted on U.S. citizens.

.. Wheeler spent four years as a career employee at the EPA under President George H.W. Bush and President Bill Clinton before moving to the Hill.

.. Wheeler wrote a post on his personal Facebook account the day before Super Tuesday pleading with those considering voting for Trump to reconsider. In his six-point critique, Wheeler questioned Trump’s character, business acumen and viability as a general-election candidate. Trump was a “bully,” Wheeler wrote in the since-deleted Facebook post obtained by The Post. He said that Trump “hasn’t been that successful” in business and “has more baggage then all of the other Republican candidates combined.”

.. Wheeler added that Trump “has demonstrated through the debates and interviews that he doesn’t understand how the government works.”

.. But Wheeler has changed his tune.

“I was just looking at the debates and what I saw on the news, and I hadn’t focused on what he was saying,”

.. when I started looking into what he was saying and what his campaign and what his candidacy was about, I was fully on board.”

.. Three Democrats voted for Wheeler, all from coal states. They included Sens. Heidi Heitkamp (N.D.), Joe Manchin III (W.Va.) and Joe Donnelly (Ind.).

.. “Andrew Wheeler is Big Oil’s backup plan in case Scott Pruitt’s corruption finally finishes him,”