“He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance” – US Declaration of Independence, 1776 

While there’s no question that great dangers lurk in American democracy as a result of all the lawfare being thrown at Donald Trump as he seeks a second term at the US Presidency, the fact is that there are deeper currents at work that will decide America’s fate, and in 2024 the Supreme Court is going to be ruling on some issues that will turn those currents one way or another.

One of those Justices, perhaps the most important one, is Clarence Thomas and has long indicated where he thinks this is all leading, Expanding The Administrative State Comes At The Expense Of The Constitution:

The very people who say they don’t want the government in their lives want this sort of expansive administrative state, which is in their lives, and then every aspect of their lives. And a lot of it comes at the expense of the very structure of the Constitution that is intended to prevent the government from coming in. The separation of powers, the enumerated powers, federalism. The whole point was to keep the government in this box. Justice Scalia and I often talked about that, that the structure was the main way to protect your liberty.

The danger in the administrative state is seeing those powers all coalesce again in various agencies. If you think about your life today, there’s very little major legislation that comes from the legislature. The legislation comes in the form of regulations from agencies. They tend to have all three powers. They have the executive power, the enforcement power, they have administrative judges to adjudicate, so they have all three. And the question for us is, where do they fit in the constitutional structure?

It doesn’t. In fact it effectively nullifies the Constitution, especially when it comes to the little guy trying to protect himself from the State. Thomas’s interviewer pointed out that none other than James Madison who said that if you combine the executive, legislative, and judicial in one person, or branch, it’s the very definition of tyranny. Smart guys those Founders.

I’ve already written about the case regarding the IRD’s attempt to tax money that never existed, but there are others that are going to leave deep marks on America:

  1. The Administrative State.
  2. Internet Fairness
  3. Where the Homeless can live.

The Administrative State

This is the biggest of them all. Forty years ago SCOTUS ruled for the government in a case that became known as the  “Chevron deference.” The Chevron oil company had got into a fight with regulators, but SCOTUS basically said that courts will uphold whatever regulators decide a law means in cases where the law doesn’t specifically spell out what regulators can or can’t do.

This may have sounded reasonable in that specific case but over time it has enabled Federal and other bureaucracies to go hog wild in creating rules and regulations never imagined by the politicians who created the legislation upon which they’re supposedly based.

What it also did was create another rule-making body in addition to the legislators and the courts, which is not what the Founders intended and which has led to a metastatic cancer across almost all bureaucracies. Aside from the frustrations created in dealing with all this, there’s the stifling of business because people just give up trying to do something different in the face of all the petty rules. Aside from the question of freedom, it’s estimated that in the USA this imposes $2 trillion in costs annually on businesses and consumers.

Now there was a smaller case that a Federal Appeals court decided a few weeks ago, arising from a Biden Energy Department issuing more stringent rulings on household appliances, resulting in less-than-useful dishwashers and such. Biden had overuled a Trump directive, leading to the case.

And in 2022 another powerful shot went not across the bows of the USS Administrative Affairs but into its side when SCOTUS ruled against the EPA in West Virginia v. EPA, where the Court ruled 6-3 that Congress did not grant the EPA the authority to devise CO2emissions caps based on a particular approach the agency had tried to take, which was their normal regulatory approach to pollution.

But this case is more important because it’s SCOTUS and can effect the whole system – and the Left know it:

“The precedent has given agencies broad powers to implement regulations in policy areas across the board, including the environment, public health, and consumer protection,” The Hill notes.

“Broad powers.” “Across the board.” That’s music to the left’s ears, which is why it is apoplectic about losing its regulatory free hand.

If the president wants to address housing shortages, he has to call in HUD. If he wants to understand why the US attorney’s office has reached X, Y, or Z outcome in the District of Utah, he has to call DOJ. And in this case, SEC (Securities and Exchange Commission) v. Jarkesy, the decision was made while Trump was President and made so many layers below him he likely never even knew of it. The defendant is George Jarkesy, a conservative radio host who was fined over half-a-million dollars by the SEC for allegedly defrauding investors and appealed this sentence by arguing that the SEC does not have the constitutional authority to do this. Frankly there’s more huffing and puffing among outside Lefty groups than in the court, where the SEC lawyers are merely trying to reinforce the old Chevron defence:

In an Atlantic article provocatively entitled, “The Case that Could Destroy the Government,” Noah Rosenblum expresses how the left really feels about all this: Basically, right-wing yahoos are using fringe constitutional theory to overturn what we generally know as “the government.”

Oh noes. How awful.

But there are another two cases, companions as it happens, that could be an even bigger blow, because they get right to the heart of day-to-day operations of business rather than the airier world of securities fights: Relentless Inc. v. U.S. Dept. of Commerce and Loper Bright v. Raimondo:

In both Relentless and Loper Bright, commercial fishing companies sued the U.S. Department of Commerce, challenging a federal administrative rule that requires businesses to pay the cost of government-mandated monitors who travel aboard their vessels during fishing expeditions.

Click on the link to read the detail but common sense would tell you that this is wrong and again, the decision was made while Trump was President. President’s, Congress, even courts, no longer matter if decisions like this are allowed to stand. In fact that’s one of the three main points over which the arguments will be made:

  • The principal of stare decisis, which is a prudential principle that cautions the court against overturning precedent. It’s a strong point in general but it has also led to very poor SCOTUS decisions like Scott Dredd (slavery), Plessy v. Ferguson (segregation) and most recently, Roe v Wade. It’s actually been the main buttress of the Chevron defence.
  • Violation of Article III of the Constitution, which vests all judicial power in the courts, including the power “to say what the law is.” (Madison again).
  • Due process, which is simply denied to the fishermen because the agency that made the rule is the court.

Obviously, calling a SCOTUS decision is risky, especially when stare decisis is involved and when you’ve got three Lefty justices just gagging to support an all-powerful business regulating state. But Justices Gorsuch, Kavanaugh and especially Thomas have shown their colours on this for decades in both lower court and on the Supremes and in argument, so it comes to down to the squishy Chief Justice Roberts, plus Alito and Barrett who have all previously denied agencies deference under the major questions doctrine. Let’s hope.

Internet Fairness

This is just as big although I don’t think it’s got the same coverage even in legal blog circles that the above has. But Netchoice v. Paxton is big in the age of Social Media giants and demonstrated efforts at censorship – often working closely with the government – should have soiled their reputation:

In the Paxton case, the Fifth U.S. Circuit Court of Appeals upheld a Texas law that would prevent the largest social media sites such as X, YouTube, and Facebook from censoring messages that would otherwise be legal and acceptable in any normal public forum. The law essentially requires social media to allow access to all political messages and viewpoints the way a telephone company must carry all messages and viewpoints.

That last has always been a key point, right down to the now infamous, if once obscure Section 230 of the Communications Decency Act of 1996, which is Title V of the Telecommunications Act of 1996. Helpfully set up to encourage the development of the Internet by freeing its providers from being sued for the content they carry:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Which makes sense. Nobody ever went after telephone or telegraph companies with lawsuits just because spies and terrorists had used them to organise their activities – although those companies were and are expected to cooperate with the State where legally criminal actions are being investigated.

But since the advent of Social Media sites like Facebook, Twitter, Instagram and a host of others in the 2000’s, the problems with S.230 have started to mount as those platforms have started acting like media publishers by censoring the content they carry, using the claim that this is perfectly acceptable private sector behaviour based around their terms of service.

Unfortunately for Libertarians and Corporate Conservatives, the newer Internet companies like Facebook, Google, X-Twitter and others, have clearly been performing ideological and politically partisan acts, where Right-speech gets canned (or shadow-banned) while its mirror-image Left-speech remains up and running. And then there’s the likes of PayPal dumping accounts used by gun companies and other businesses that the Left disapprove of.

Basically what is being argued here is around the terms of what is a “common carrier” and what is a “public square”.

On the latter point I pointed out the two contrasting cases some months ago in Stochastic terrorism and S. 230:

In Miami Herald, the Supreme Court held that a Florida statute that required newspapers to grant political candidates the right to equal space to reply to criticism violated the First Amendment rights of the publisher
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Conversely, in PruneYard Shopping Ctr. v. Robins, the Supreme Court held that the state could require privately owned shopping centers to allow individuals to distribute political literature without violating the mall owners’ First Amendment rights.

So in the latter case the state can actually require someone maintaining a large public space where people congregate in large groups – to permit people to engage in political messaging. Facebook now has nearly 3 billion monthly active users, and all social media now has some 4.9 billion users worldwide. You think they count as large public spaces where full and fair participation in political speech and debate is needed to enable democratic, civil societies?

And obviously, such Big Tech monopolies are not injured in their ability to get their own monopoly message out just because TrumpFanboi360 is allowed to say “Hunter Biden is a crackhead whore who sucks Chinese dick for money, plus 10% for ‘The Big Guy’”

According to that AG article the plaintiffs devoted just two pages to the common carrier issue and only one paragraph to the “public square” question, which is not a sign of strength, given the role they’ve played in past SCOTUS decisions:

In seeking to avoid common carrier status, the plaintiffs assert, “Covered websites … are not common carriers. They do not hold themselves out as affording neutral, indiscriminate access to their platform without any editorial filtering.” But this is disingenuous because, in reality, they do. The simple fact is that no business could ever gain billions of users unless they provided, in essence, neutral and indiscriminate access.
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having editorial rules stop an organization from being a common carrier. There are editorial rules that prevent messages even in public mail or on privately-owned common carrier telephone companies. Child pornography is barred, for example.

Finally, abusing the obligations of a common carrier does not free the bad actor from being a common carrier and having those obligations.

And this case does reach back into history, with Justice Hugo Black writing in the famous Marsh v Alabama case about a company town:

Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm … When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.

That article prefers a so-called “balance-test” but my preference would be for the Court to affirm that S.230 immunizes platforms against harms caused by the writings of third parties – but then adds dicta (advisories not directly related to the case or necessary to the ruling) that such immunity is available only to platforms when behaving as platforms, and only when they are acting in good faith, and using acts like the Texas anti-censorship law to support all that.

Then are the cases that are not about private censorship but government censorship done on the sly using proxies like Internet companies:. The first is yet another battle in the Chinese Lung Rot propaganda war:

The most significant is Murthy v. Missouri. In July 2023 the District Court issued a preliminary injunction against the Department of Justice, Department of Health and Human Services, State Department, Centers for Disease Control and Prevention, and the FBI from contacting social media services in order to urge, encourage, pressure or induce the “removal, deletion, suppression, or reduction of content containing protected free speech.”
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There’s NRA v. Vullo questioning whether the threats by New York’s Department of Financial Services against regulated banks and insurance companied to sever ties with the NRA violates the First Amendment.
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And there are two companion cases, Net Choice v Paxton and Moody v Net Choice, involving formal legislation regulating social media content.

Two other free speech cases are pending in the Supreme Court — Lindke v. Freed and O’Connor-Ratcliff v. Garnier, both of which concern when and whether a government official’s use of a social media platform becomes state action.

That adds up to a lot of government censorship.

Where the Homeless live

Normally you wouldn’t think a case about homelessness would be SCOTUS material or that impactful across the USA. But perhaps you’re thinking of the USA as it was just twenty years ago, when the homeless were there, but hidden away in small numbers. Today, thanks to the insanities of Democrat One Party cities, they’re everywhere and destroying the CBD’s of cities like Chicago, Portland, Seattle, San Francisco and many others.

As such, the SCOTUS decision to take up the case of Johnson v. City of Grants Pass is likely to have far larger impact than usually imagined for what is regarded as a very localised issue that is in the hands of local government. What’s at stake is the question of whether the homeless have a constitutional right to be a vagrant and just crash or set up a tent wherever the hell you want to:

[In a 2018 case, the 9th Circuit] held that punishing homeless people for public camping would violate the Eighth Amendment’s ban on cruel and unusual punishment if they did not have access to shelter elsewhere. The court of appeals reasoned that, just as the city could not punish someone for their status – being homeless – it also could not punish them for conduct ‘that is an unavoidable consequence of being homeless.'”

The funny thing is that none other than the usual suspects in creating this problem have joined with their critics in asking SCOTUS to rule:

Local governments in the Ninth Circuit’s jurisdiction, including Los Angeles, San Francisco and Phoenix, also urged Justices to hear the case. That includes California Gov. Gavin Newsom, who argued in a friend-of-court brief that “courts are not well-suited to micromanage such nuanced policy issues based on ill-defined rules.”

Which would be a fair point if the likes of Newsom (former Mayor of San Francisco) were doing a bang up job of taking care of the homeless and preserving their cities. But they’re not:

San Francisco, which spent over $672 million during the last fiscal year to provide shelter and housing to people experiencing homelessness, told the justices in a ‘friend of the court’ brief that its inability to enforce its own laws ‘has made it more difficult to provide services’ to those people