S3E7: the administrative state deconstructed

Liberal but practical podcast

The World As I Like It To Be is a liberal podcast, but I like to think we are a practical one.

On today’s show we will discuss the winners and losers from night one of the 2020 democratic debate that aired on NBC and MSNBC and Telemundo on Wednesday 26th 2019.

The purpose of today’s blog is to discuss why some of what Bernie Sanders and Elizabeth Warren would like to do will not work. Both having to do with the court and world events.

But first, according to  The New York Times, almost 15.3 million Americans tuned into Wednesday’s debate, a number that far exceeded what NBC News had anticipated.

Viewership almost equaled the 2015 Democratic primary debate between Bernie Sanders and Hilary Clinton.

It’s important to note that 15.3 million did not include streaming services or live viewings on YouTube, Facebook and other progressive podcasts and online series that normally skew close to the democratic base.

Surprisingly, the commander in chief remained relatively quiet on twitter during the whole thing.  I wonder why….

Review and analysis here:

Having a liberal podcast sometimes doesn’t give me the time to delve deep into some of the more important stories. This is why the blog is so helpful.

With this blog, I can spend time explaining some of the more important stories that occurred over the week that we do not have time to talk about on the show.

Supreme Court Decisions Spark Controversy

Because there is a lot to talk about with respect to night two, I want to spend some time in this blog going over the very important decisions handed down by the high court last week.

The additions of Kavanaugh and Gorsuch is beginning to pay dividends for the conservative Republican party who has been taking swings and hits at a number of issues.

I want to focus on a set of laws and legal concepts that are vital to the function of this country over the past 50-60 years. They reflect Trump’s (and really conservative Republican’s) long term goal for the future of this nation.

It also speaks to how the inequality in the country will be cemented in stone so that the haves will have more.

Advisor Steve Bannon and former Chief of Staff Reince Priebus

Deconstruction of the World Order

Remember when Steve Bannon said that Trump’s mission as president was the “deconstruction of the administrative state”?

I wonder what that means?

The “administrative state” could be commonly looked at as the set of laws that govern the country and allow the government to function.   Anything from the tax policy to regulation of commerce, of banks, of oil and gas industry and more.

But it also includes our standing on the international stage. It includes the post-World War II political and economic structures and pacts such as NATO and the Geneva convention.

The breaking down of these norms, laws and set of agreements is a radical, radical thing. 

And it is beginning.

This blog will not go into the number of agreements the administration has violated or the number of allies he as offended or the tariffs he has imposed.

Instead I want to enumerate the pillars being knocked down and how the change is happening quietly but with all due speed.

Pillar #1 – The World Versus Trump

Ironically, in order to combat the Trump administration, the Europeans are fast tracking their exit from  agreements with the US by doing a side deal with Iran to preserve the JCPOA. 

European allies along with China and Japan are creating a trade channel called INSTEX which allow for trade with the country. 

This is to get around economic pressure being put on Iran by the United States. Iran has stated that if allies do not help relieve the economic pressure they will breach the agreed limits on uranium.

According to the Hill website that has already happened.

The U.S. has warned any trade with Iran will cause the United States to sanction that country.

This would effectively break up alliances and partnerships that have been alive since the end of World War Two.

And it would enact Mr. Bannon’s wishes on the international stage.

Justice Clarence Thomas

Pillar #2 – The Supreme Court attacks precedent

The Supreme Court is doing its best to take apart the administrative state for Trump too.

Justice Clarence Thomas has called for a review of “demonstrably erroneous precedent” and that the court “…should not follow it.”

In this case, Thomas was referring to Planned Parenthood v. Casey which reaffirmed Roe v Wade. Casey says states can not put an undue burden on a woman seeking an abortion.  

But this comes at a time when states are actively working to challenge Roe by adding burdensome regulations and in some cases outright outlawing abortions after a few weeks.

Observers believe these conservative states are trying to trigger a lawsuit that can make it to the Supreme Court.

Every liberal with a podcast or a blog or a television show will be watching and waiting to see if the high court will take the bait.

Pillar #3 – Supreme Court attacks administrative law

Just this week, the SCOTUS took a swing at another pillar of the administrative state.

In a lesser discussed case called Kisor v. Wilkie speculators expected the conservative Roberts court to end a legal doctrine called ‘auer deference’ which dates back to Auer v Robbins.

Auer says when deciding a case, if there is ambiguity in the law, the Courts should generally defer to agencies’ interpretations of their own regulations. 

That precedent survived Kisor, but, as Justice Gorsuch says in his decent:

“…the doctrine emerges maimed and enfeebled – in truth, zombified,”

Former justice Antonin Scalia, whom many on the right see as the great legal mind of this age, began this assault on Auer years ago. 

Scalia believed Auer was the cause of bad legislation and that it encroached on separation of powers (and gave the federal government too much power).

As one can imagine, businesses sided with Scalia on this.

From Scotusblog:

The two principal opinions in Kisor did clash over the separation of powers issue, but these arguments filled only a relatively small proportion of the respective opinions. For the most part, therefore, the supposedly narrow question of overruling Auer turned into a battle over broad themes that have pervaded the law of deference for decades.

But Roberts sided with the liberals and Elana Kegan who stated in her decision that Auer has been used by the court on dozens of cases, and thousands of times in the lower court. 

In effect she was arguing it is well established judicial precedent that everyone relies on.

But the non liberal, highly partisan attack on it (and in the future the Chevron doctrine which we will do a podcast or blog about at another time) is telling for another reason:

From Scotusblog:

This reflects the disillusionment with the administrative state that has become such a prominent feature of our politics during the past decade.

In this respect, at least, President Donald Trump apparently got exactly what he was seeking when he appointed Gorsuch to serve on the court.

Gorsuch repeatedly insisted that deference interferes with a court’s ability to adopt the “best reading” of a regulation. But generations of judges have thought that agencies have much to contribute in terms of helping the courts find the “best reading.”

That the concurring justices do not share that belief tells us much about a new level of judicial self-confidence (or disdain for administrative competence) that is portentous for the future.

The significance of Auer

So why is Auer so important and what does it have to do with Kisor v Robbins?


This high-stakes legal issue came to the Supreme Court in the fairly unremarkable case of James Kisor, a Vietnam veteran who applied for benefits for his post-traumatic-stress disorder. The Department of Veterans Affairs agreed with Kisor that he suffers from PTSD but rejected his request for benefits dating back to 1983.

When Kisor appealed the VA’s decision to the U.S. Court of Appeals for the Federal Circuit, the court of appeals deferred to the VA’s interpretation of its own regulation and sided with the agency.

Last year Kisor asked the Supreme Court to weigh in, and today the Supreme Court gave him a partial victory. It declined to overrule the Auer doctrine, as he had asked, but it sent his case back to the Federal Circuit for it to take another look.

Opponents, call Auer and accident and called it deeply flawed and that judges should interpret the law not federal agencies.

If Auer is allowed to fall one has to wonder what will happen if the EPA, the FDA and other agencies are sued by big business like the oil and gas lobby, big pharma and more.

What side of the fence the these heritage foundation federal court judges will take when Auer is overturned?

All the noise of taking on the big banks, the one percent and Wall Street by Warren and Sanders are just that. Tough talk.

But unless democrats are able to take on judicial reforms and reign in the Court, their big plans are going nowhere.

Gorsuch has put us on notice. The clock is ticking. And this liberal and his podcast will be waiting.

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