James Hohmann In WashPost: How Trump Is Winning The War Even While Losing Some Key Battles — “Deconstruction Of The Administrative State” Moving At Full Throttle With No End In Sight! PLUS EXTRA BONUS: My Mini-Essay “On Gorsuch, Deference, & The Administrative State!”


Hohmann writes:

“– Liberals mock Trump as ineffective at their own peril. Yes, it’s easy to joke about how Trump said during the campaign that he’d win so much people would get tired of winning. Both of his travel bans have been blocked – for now. An active FBI investigation into his associates is a big gray cloud over the White House. The president himself falsely accused his predecessor of wiretapping him. His first national security adviser registered as a foreign agent after being fired for not being honest about his contacts with the Russian ambassador. His attorney general, at best, misled Congress under oath.
— Despite the chaos and the growing credibility gap, Trump is systematically succeeding in his quest to “deconstruct the administrative state,” as his chief strategist Stephen K. Bannon puts it. He’s pursued the most aggressive regulatory rollback since Ronald Reagan, especially on environmental issues, with a series of bills and executive orders. He’s placed devoted ideologues into perches from which they can stop aggressively enforcing laws that conservatives don’t like. By not filling certain posts, he’s ensuring that certain government functions will simply not be performed. His budget proposal spotlighted his desire to make as much of the federal bureaucracy as possible wither on the vine.

— Trump has been using executive orders to tie the hands of rule makers. He put in place a regulatory freeze during his first hours, mandated that two regulations be repealed for every new one that goes on the books and ordered a top-to-bottom review of the government with an eye toward shrinking it.
Any day now, Trump is expected to sign an executive order aimed at undoing Obama’s Clean Power Plan and end a moratorium on federal-land coal mining. This would ensure that the U.S. does not meet its commitments under the Paris climate agreement.

The administration is also preparing new executive orders to re-examine all 14 U.S. free trade agreements, including NAFTA, and the president could start to sign some of them this week.

— Trump plans to unveil a new White House office today with sweeping authority to overhaul the federal bureaucracy and, potentially, privatize some government functions. “The Office of American Innovation, to be led by Jared Kushner, the president’s son-in-law and senior adviser, will operate as its own nimble power center within the West Wing and will report directly to Trump,” Ashley Parker and Philip Rucker report. “Viewed internally as a SWAT team of strategic consultants, the office will be staffed by former business executives and is designed to … create a lasting legacy for a president still searching for signature achievements. … Kushner’s team is being formalized just as the Trump administration is proposing sweeping budget cuts across many departments, and members said they would help find efficiencies.”

Kushner’s ambitions are grand: “At least to start, the team plans to focus its attention on re-imagining Veterans Affairs; modernizing the technology and data infrastructure of every federal department and agency; remodeling workforce-training programs; and developing ‘transformative projects’ under the banner of Trump’s $1 trillion infrastructure plan, such as providing broadband Internet service to every American. In some cases, the office could direct that government functions be privatized, or that existing contracts be awarded to new bidders.”


On Gorsuch, Deference, & The Administrative State

by Paul Wickham Schmidt

Hohmann’s points make quite a bit of sense to me — until he gets down to his rather remarkable conclusion that progressives should have invested more in a fight against Gorsuch. What? Just how would they have done that?  The GOP has the votes to confirm, as they will do, and there is nothing the Dems can do to stop it, except to look feeble, petty, and out of touch in the attempt.

The confirmation hearings revealed nothing that was not already known. Gorsuch should be a reliable conservative vote on the Court, perhaps, but not necessarily, even more than Justice Scalia. Surprise!

We just had an election during which McConnell’s scheme to block the nomination of Chief Judge Merrick Garland to the Supremes, the control of the Senate, and the ability of the next President to appoint a liberal (Hillary) or a conservative (Trump) as Scalia’s replacement were big issues. And, guess what? Whether Dems like it or not, the GOP won both the Presidency and the Senate and thereby the ability to appoint their man (in this case) as the next Justice.

What’s remarkable about that? It would have only been remarkable if President Trump had nominated someone less conservative than Judge Gorsuch. And, certainly, if Hillary had won and the Democrats won the Senate she could legitimately have chosen to resubmit Judge Garland or chosen an even more liberal candidate who would have duly been confirmed by the Democrats over the GOP’s objections. Elections have consequences, particularly when your party loses control of both of the political branches of Government.

I continue to suspect that while Justice Gorsuch will be very conservative, at some point in the future he will be persuaded to side with the so-called “liberal Justices” against some position that is key to the GOP — perhaps, the scope of Executive authority. At that point, the same GOP Senators who gushed on about his “judicial independence” will be screaming “betrayal,” while the Democrats will be congratulating him on “conscientiously following the law.”

Look at how Chief Justice Roberts went from poster boy for judicial conservatism to “dupe of the left” just by failing to veto Obamacare as the GOP had been counting on. All politicians want judges who exercise their “judicial independence” in a predictable way consistent with the political philosophy of the party that appointed them. Once on the bench, however, with lifetime tenure and only their judicial colleagues to answer to, few actually live up to all of the exceptions of their political appointers.

Moreover, I don’t agree with the supposedly “liberal” position that Executive Branch administrative judges (like I was) and bureaucrats (which I also was) should have the power to impose their views on legal issues, even if not particularly sound ones, on the Article III Judiciary. Chief Justice John Marshall must be turning over in his grave, while Thomas Jefferson dances on top of it, at this bizarre voluntary surrender of judicial authority known as “Chevron.”

There is always pressure on Executive Branch officials, be they administrative judges or just “regular agency bureaucrats,” to construe the law in ways that favor Executive policies and Executive power over the power and prerogatives of the other two branches of Government and often over the rights of individuals in the U.S.

Deciding difficult questions of law, where the answers are not clear, is what Article III Judges are paid to do, and what they are supposed to do under the Constitution! At one time, this is what they actually did! The pre-ChevronSkidmore doctrine” already gave the Article III Judiciary adequate latitude to recognize the expertise of certain Executive Branch officials and to defer to their interpretation when it appeared to be the best one, or at least as good as any of the alternatives.

But, Chevron basically substituted the concept of “any plausible interpretation” for the “best interpretation.”  That’s simply not the way an independent judiciary should function under the separation of powers established in our Constitution.

I say all of this as someone who spent the bulk of my professional career as a public servant within the “administrative state” and who, unlike the Bannons of the world, believes in the power of the Federal Government to do good things for the general population. But, I have also seen first-hand the weaknesses and biases of the Executive when it comes to interpreting the law.

Meaningful independent judicial oversight over the “administrative state,” which includes “de novo” (basically unrestricted) review of Executive legal decisions by the Article III Judiciary, is a requirement  for fairness and due process under our Constitution.

Finally, the Dems should abandon Schumer’s ill-conceived idea of a “Gorsuch filibuster.”  Of the minority of Americans who actually care about the Gorsuch confirmation, only a minority of those are opposed. In other words, the Dems are about to proceed on a futile parliamentary maneuver that really only speaks to a small number of voting Americans, who are already in their “base.” Absolutely no need to do that.

What is needed if the Dems don’t want another Gorsuch appointment is to start winning more elections, particularly in the U.S. Senate and for the Presidency the next time around. That will require more than feeble posturing, tilting at windmills, and some additional “Trump fails.”

The Democrats need some dynamic leadership (which currently is conspicuously absent) and some real, down to earth programs and proposals to solve America’s problems (something which I haven’t heard to date). What can the Dems do that the GOP can’t, and why should folks care?

Otherwise, the next nominee for the Supremes could be along the lines of Judge Jeannie or Judge Napolitano. And, the Dems will continue to be powerless to stop it.




POLITICS/SUPREME COURT: It’s Time For Dems To Stand Up To Their Off-Base Base — The Folks Who Helped Put Trump In Power Now Want to Drive The Opposition Agenda!


From HuffPost:

“Democrats know they don’t have the votes to stop Supreme Court nominee Neil Gorsuch from clearing his Senate confirmation hearing, which begins Monday. But they don’t appear to have a strategy, or even the energy, for a coordinated fight against President Donald Trump’s conservative court pick.

Chalk it up to Trump’s chaotic administration, or to Senate Minority Leader Chuck Schumer’s low-key approach. Democrats just haven’t treated Gorsuch’s nomination as the kind of high-profile ideological battle that Supreme Court choices traditionally bring about. Even in the days leading up the hearing, it’s felt more like an afterthought on Capitol Hill.

“I hope the questions are good,” Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, told The Huffington Post on Wednesday when asked about her thoughts heading into the hearing. Asked if there are any particular issues she plans to press Gorsuch on, she replied, “Not right now.”

Progressive advocacy groups have been demanding a real fight against Gorsuch, who, as an appellate judge on the U.S. Court of Appeals for the 10th Circuit, built a record of opposing reproductive rights, LGBTQ rights, civil rights, workers’ rights, immigrants’ rights and environmental protections.

Led by NARAL Pro-Choice America, 11 organizations sent a letter to Senate Democrats this month torching them for having “failed to demonstrate a strong, unified resistance to this nominee, despite the fact that he is an ultra-conservative jurist who will undermine our basic freedoms…. We need you to do better.”

They also delivered more than 1 million petitions to the Senate urging Democrats “to oppose Donald Trump’s extreme anti-choice Supreme Court nominee.”


Barring something we don’t know yet, Judge Neil Gorsuch will become the next Associate Justice of the U.S. Supreme Court. Yes, he is very conservative. And, yes, he might well vote against some legal positions that Democrats hold dear, like Roe v. Wade.

But, we can hardly know that yet. Funny things happen when Federal Judges get lifetime appointments to collegial courts and are exposed to equally well-qualified jurists with differing views. Whether we admit it or not, as a former member of a “collegial administrative court,” I can say that the views and jurisprudence, as well as the personalities, of the other jurists, do influence, and sometime change, the outcomes of cases.

Moreover, we had an election in which the existing vacancy at the Supreme Court was a major issue brought up by both parties. And, guess what? The GOP won and the Dems lost. Not enough folks in the right places were motivated by the inevitability of a conservative pick to replace the late Justice Scalia to put Hillary Clinton in office.

While I am by no means a fan of the Trump Presidency, I find his nomination of Judge Gorsuch one of his best and most “Presidential” moves yet.  Judge Gorsuch is a serious, scholarly, productive Federal Judge with experience working on a collegial court. He certainly seems to be someone willing to engage in judicial dialogue and carefully consider the views of his colleagues — necessary qualities that were not always present in Justice Scalia’s largely polarizing career.

In any event, one would not reasonably have expected President Trump to appoint Judge Merrick Garland or a Justice Sotomayor, Justice Kagan, or Justice Ginsburg “clone” to the Court, any more than we would have expected Hillary Clinton to appoint someone like Judge Gorsuch.

The groups pushing the Dems to engage in futile obstruction of the Gorsuch nomination, and to “punish” those who fail to submit to their demands are the very same disgruntled progressives and former Bernie supporters who failed to turn out the vote in sufficient numbers to beat Trump in places like Wisconsin, Pennsylvania, Michigan, North Carolina, and Ohio, states which had voted for Obama and which should have been, but weren’t, “winners” for Clinton.

Yes, “Obstructionist Politics” worked for the GOP. Big time! But the Dems strength is that they are not the GOP. Trying to turn the Democratic Party into the “Tea Party of the Left” is not going to win elections. And, it’s going to take more than miscues by President Trump to get the Dems back in power. The “expose his flaws” campaign theory was proved to be stunningly unsuccessful in the 2016 election. Doubling down on it is going to be equally unsuccessful.

No, the Dems are going to have to do more than oppose and point out Trump’s many, well-known flaws. They are going to have to come up with better programs that the country can afford and “sell” them to the voters, including some who voted for Trump. So far, I haven’t seen much of that, notwithstanding all the opposition energy that has been generated.

Pushing  a futile, highly idealogical opposition to Judge Gorsuch is not the way to present yourself as the “grown-up alternative to Trumpism.” And, it is way past time for the Dems to abandon the practice of both parties of using serious and important Federal judgeships as “political footballs.”

Yes, of course, Democratic Senators should ask Judge Gorsuch tough questions. And, of course, any Senator who feels conscience bound to do so should vote against the nomination. But, for reasons of conscience, not in response to an anti-Gorsuch “campaign” being conducted by some leftist groups.

There is no reason for the Dems to be rude or obstructionist during this confirmation process. Do what you have to do, let Justice Gorsuch take his seat, and start working on some alternative programs to what President Trump and the GOP have proposed. Otherwise, Judge Neil Gorsuch will be just the first of many Supreme Court picks for President Trump and the GOP. And, the Dems will have mostly themselves to blame.