Do We Still Have the Right to Protect Ourselves?

The Trump Supreme Court starts “deconstructing” the administrative state.

I was writing a piece on the climate debate when this happened!

This isn't just about crippling the ability of federal agencies to do their jobs. It's about the fact that the federal government is a tool that we, the people, use to cooperate in order to protect ourselves and each other.

Photo by Chris LeBoutillier on Unsplash

After the 2016 election, Trump presidential advisor Stephen Bannon vowed to pursue the “deconstruction of the administrative state.” For decades, the American people have cooperated to protect themselves and each other from the harm caused by private interests’ greed and destructive behavior, by using the tools of democratic federal government. Today, the Trump Supreme Court gave those powerful private interests two new ways to attack those tools, threatening our ability as a people to take action to protect ourselves.

The Trump Supreme Court limited the ability of the Environmental Protection Agency to regulate power plant emissions, because that ability was not “spelled out” in the laws passed by Congress. They evoked the “major questions doctrine,” which is the idea that if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly in the authorizing legislation.

Laws authorizing federal government departments usually lay out what that department is supposed to achieve, leaving the “how to achieve it” up to the executive branch to work out. In this case, Congress authorized the EPA to keep our air and water clean. If regulating power plant emissions isn’t an essential part of keeping our air clean, I don’t know what is.

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Reframing Regulations as Public Protections

What corporate conservatives call “regulations” are actually “public protections.” We, the American people, use the federal government as a tool to protect ourselves and each other from the abuses of powerful private actors.

Read more about this reframing strategy from George Lakoff:
The Public’s Viewpoint: Regulations are Protections

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We have the right to protect ourselves against things like pollution, car accidents, bank fraud, food poisoning, and so on. For decades, private interests and their corporate conservative spokespersons have argued that these protections are an imposition on their freedom, and have sought to use their money to gain enough political power to overturn the will of the American people. With the Trump Supreme Court, they now have that power.

First – we will start to see a wave of lawsuits against federal government agencies, as virtually everything they do that is not literally spelled out in the authorizing legislation will be challenged under the “major questions” doctrine. Whole divisions of our federal government could be under immediate threat.

Second – while some might say that this just gives the power back to Congress to do a more thorough job of articulating what it actually wanted these departments to do, what it really does is subject everything the executive branch does to the legislative graveyard that is our currently divided government. Never mind that previous U.S. Congresses already passed these laws. They will now have to re-pass all these laws in much greater detail through a Congress deadlocked by a Senate Republican minority hell bent on minority rule.

As I have said before, some people do not want government to work, because government is the only tool that we, the people, have to stand up to private power, especially concentrated economic power and religious fanaticism. Now that the agents of private economic power control the Senate Republican minority and the Trump Supreme Court, they have more ways to stop us from protecting ourselves.

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I strongly recommend reading this article that explains much more about the history of and the players involved in the movement to weaken the “administrative” state.

E.P.A. Ruling Is Milestone in Long Pushback to Regulation of Business
By Charlie Savage, The New York Times, June 30, 2022

“The decision created greater opportunities for business interests to challenge regulations, reflecting conservative legal theories developed to rein in administrative agencies.”

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