Giving Citizens Back Power to Hold Government to Account
Steve Dittmer | AFF Sentinel
Colorado Springs, CO
Originally sent to subscribers 07/01/24
Literally dozens of times over the years, we’ve alluded to the political left’s strategy of getting through the courts the cherished goals they could not get through Congress. That’s why Donald Trump’s SCOTUS nominees -- of justices more loyal to the actual Constitution -- are the gift that keeps on giving.
But federal agencies likely weren’t deep enough in the saddle to ride out the end of the 2024 Supreme Court term
Last week, one of the most important and far reaching decisions made by SCOTUS in four decades came down, marking the beginning of the end of the extra-Constitutional “fourth branch” of U.S. government. Multiple commentators have contended the beginning of a sprawling, all-encompassing bureaucracy governing the overall direction of government and the minute details of personal and business life in America traces to the Chevron decision of 1984.
That decision set the precedent that the courts must defer to a federal agency’s interpretation of what authority statutes gave to agencies to issue regulations. Therefore, in gray areas where Congress was not specific enough or on the margins where it was not clear whether Congress did or did not intend to give agencies additional authority, whatever the federal agencies decided was permissible, was so.
Filled with elitists who were certain they knew better than the citizens and certainly those greedy, grasping businessmen, the bureaucrats set to work to create what Newt Gingrich referred to as “big government socialism.” The courts deferred to the agencies, Congress didn’t rein in either their authority or their budgets and over four decades, we find the federal government dictating (ruining) our appliances, our language and terminology of daily discourse, our energy sources, our cars and trucks, our thermostats, our tire repair…the list is endless, the details mind bogglingly pervasive and intrusive.
Ironically, nearly the same day the Supreme Court followed up the West Virginia decision of last term with overturning Chevron, USDA issued rules further dictating how livestock marketing was to be conducted.
It is even more ironic and revealing that Ag Secretary Vilsack made the announcement of a new 77-page proposed rule regulating livestock marketing at a meeting of the Center for American Progress. AFF was present at a think tank session of the Organization for Competitive Markets years ago, when unhappy cattlemen and livestock producers and labor union members hatched the idea of pro-big government farmers and ranchers joining with labor unions to “reform” the functions of free market capitalism that was “cheating” farmers and workers of their fair reward.
The upshot of those discussions was the Center for American Progress, which John Podesta founded, chaired and served on the board. He was also Hillary Clinton’s campaign manager and a key official in both the Obama and Clinton White Houses. He is currently overseeing the disbursement of $370-783 billion in clean energy tax credits.
Podesta’s book, “The Power of Progress: How America's Progressives Can (Once Again) Save Our Economy, Our Climate, and Our Country” says all you need to know about his stance on executive branch power.
USDA’s effort to define “unfair” and “deceptive” deserves its own story but it contains a lot of goal setting, much circular description -- and we’ve not yet found explicit examples of what cattlemen and packers could or could not do.
The agency refers to “marketplace abuses in concentrated markets.”
But the proposed rule specifically states that it “does not require proof of actual harm, nor does it require proof of predatory intent.”
We’ll have to look closer, but on the face, that sounds like any coffee-shop malcontent can complain to USDA’s complaint hotline and win.
And yes, there is such a hotline.
The Supreme Court also ruled that the Sarbanes-Oxley law prohibiting the destruction of evidence and rules regarding obstruction of government functions cannot be used to prosecute Jan. 6 accused citizens, meaning some 330-plus citizens so charged will have to have their cases re-examined. One commentator wondered how Hillary Clinton, on the other hand, could escape indictment since it was established she destroyed evidence on computers (Bleachbit) and we recall the mental image of Clinton aides wielding hammers on cell phones.
SCOTUS also ruled in the case of presidential immunity, which affects some of former President Trump’s cases. The Court ruled that official acts are immune from prosecution but not necessarily private acts. But President Joe Biden and dissenting members of the Court made it sound like a president could do anything and get away with it. Not that (ahem) that hasn’t happened already and escaped, or anything.
But a decision you may not have heard about further exposes federal agency actions to be called to account for overstepping statutory authority, sometimes years after they take effect. The Corner Post truck stop sued the Federal Reserve over bank debit card fees. The usual deadline for broad challenges to federal regulations is six years, which in this case would have expired in 2017. But the Court ruled that the six years didn’t start ticking until 2018, when the Corner Post first opened.
This ruling could open agency regulations to challenge many years down the line. Chief Justice Roberts said the legal principle that says everyone is entitled to their day in court doesn’t say, unless someone else had their day in court.
SCOTUS also ruled that people accused of fraud by the SEC have the right to a jury trial in federal court, rather than the SEC acting as in-house prosecutor, judge and jury before administrative law judges. The Court ruled that Congress had unconstitutionally allowed the SEC too much authority regarding the option of a jury trial in federal court or being forced into the in-house SEC court.
The attorneys for the citizen who won the case and had his fines and “ill-gotten” gains returned explained how the SEC took in $5 billion in fines last year: the SEC wins almost all the cases it brings in front of the administrative law judges but only about 60% of cases tried in federal court.
SCOTUS also ruled that the president being unable to fire administrative law judges is unconstitutional.
All in all, in has been a very satisfying end of the Supreme Court term for ordinary citizens, for businesses and for the taxpayers of America.
Citizens of a democratic republic, with individual liberties and a free market economy, shouldn’t have to constantly sue the government they authorized and pay for, to keep the rights they already have. We’ll likely have to sue more for a while to catch up -- but now the odds have turned in our favor.
With federal agencies on a shorter, more Constitutionally-restrained leash, maybe they will be more apt to issue fewer, more circumspect regulations direly needed, rather than act like they have a license to impose any rule they can think of.
At least, for a while.
*Life, Liberty and Levin, Fox News Channel, 05/25/24
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*Life, Liberty and Levin, Fox News Channel, 05/25/24