Some distant day in the future, historians are going to look back at America and it is quite possible that the seven days between June 25 and July 1, 2024 will be viewed as one of the most consequential weeks of the 21st century.
The president glitched enough in a national debate that the question facing the public changed from his opponent’s fitness for office to the president’s competence. The likely result of the revelation to 51 million viewers that the president is not mentally competent is his being either voluntarily or legally removed from both the White House and the ballot for re-election.
His family met over the weekend to determine whether he should keep in the fight or end his re-election bid or immediately retire from the presidency and public life. At the same time, it was leaked that Michigan Governor Gretchen Whitmer told national Democrats that her state could not be won with the incumbent president on the ballot. For those Electoral College followers, without Michigan, the Democratic nominee has little pathway to win the election.
Whitmer, California Governor Gavin Newsom and the Obamas all voiced public support for the ailing president, while clearly sending signals to everyone that might listen that should the president make the choice to drop, they just might be the right person to reluctantly fill-in for the fallen hero.
The vice president, who would be the immediate beneficiary should the president choose to retire immediately, voiced her vigorous support for her running mate in the immediate aftermath of the debate. She did so all while discovering that none of the traditionally liberal pundits were reassuring the American people that she was up to the job.
Perhaps she should have had a clue throughout the three and a half years of the Biden presidency. Every time she was called to step up, she either ignored the assignment (see the southern border) or unleashed an abrasive cackle while providing a word salad that cringed everyone.
The week also saw the 90 year legacy of Franklin Delano Roosevelt, the administrative state, significantly emasculated by the Supreme Court. In four decisions combined with one from an earlier term (West Virginia v. EPA), the Court neutered the bureaucrats who’ve run roughshod over elected government for close to a century.
In Jarkesy v. Securities and Exchange Commission, the Court held that those accused of violating Agency regulations have a right to a jury trial, rather than being subjected to the whims of agency judges, known as Administrative Law Judges. Imagine the concept, an accused American being allowed to have their case tried before a jury of his peers. Incredibly, that right had been deprived of those accused of violating regulations until the Supreme Court forced the deep state to follow the Constitution.
Another Supreme Court decision, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce wiped away one of the landmark expansions of administrative state power by overturning Chevron v. Natural Resources Defense Council. The 1984 case gave rise to something called Chevron deference, which SCOTUSBlog.com described as follows, “if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.”
In practice, the Chevron deference made controversial decisions by unelected regulators virtually unchallengeable as the bureaucrats were deemed to be right, even if the Court disagreed with their decision based upon the facts. The effect of the decision is that the doctrine which made the expansion of the administrative state inevitable and exponential is toast. By putting controversial decisions back in the hands of the federal courts, at least those who oppose the regulatory expansion have a fighting chance to have the rule of law followed.
Before too many people jump up and down in either grief or joy, the Court chose to grandfather the 18,000 or so cases that relied upon the whim of federal bureaucrats.
But before the week ran out, the Court also opened the door for challenging these very decisions if a plaintiff can show recent harm. In a case dealing with a truck stop owner who claimed harm due to Consumer Financial Protection Board rules related to credit card fees, the Court ruled that the Agency could be sued, opening the door for thousands of private actions against the government for recent harms caused by regulations that were reliant upon Chevron deference for existence.
CNN Supreme Court analyst, Steve Vladeck, succinctly stated the impact saying, “Today’s ruling is especially significant in light of Friday’s decision overruling Chevron, because it means that even old agency rules can be challenged anew so long as they produce any contemporary harm.”
Not long before that, the Supreme Court also slapped the Bureau of Alcohol, Tobacco and Firearms for their decision to ban the possession of bump-stocks, which use the recoil of a firearm to pull the trigger to fire a single round. The ATF decided to rewrite federal law by declaring these devices a machine gun part, even though the law explicitly defines a machine gun as firing multiple rounds with a single pull of the trigger. The Court rebuked the ATF for rewriting the law, noting that was Congress’ job, not theirs.
Novel concept: Congress writes the laws, the president signs them and those who work for the president then enforce them.
As a late night television commercial might say, but wait there’s more.
The Court also ruled that an agency cannot require fishermen to pay for federal monitors on their boats to enforce regulations. Why does this matter? An agency, in Relentless v. Department of Commerce, was allowed to force fishermen to pay for federal monitors to oversee their activity. The Court found that this was a blatant overreach and expansion of the Commerce Department’s power was unconstitutional using it to overrule Chevron v. NRDC.
In ending the Chevron deference in both the Loper and the Relentless decisions, the Court made it clear and unambiguous that the bureaucratic deference in Court is over.
The past seven days should rightfully be viewed as the week when the power in America shifted dramatically away from the executive branch’s bureaucracy and toward Congress, the Courts and individual freedom. It was a week when Constitutional governance with the consent of the governed at its center was restored to the center of American law.
As for the hapless president, his legacy is written in the blood of our thirteen servicemembers who died in his disastrous Afghanistan withdrawal. Whether he stays or goes, he will be replaced, but the permanent bureaucracy has had its wings dramatically clipped, and should the election go toward those who support individual rights and freedom in November, the federal employees themselves will most likely find significant reduction in their numbers as Congress moves to cut their numbers and take their own legislative hatchet to the regulatory regime that has dictated American society for far too long.
The author is president of Americans for Limited Government.