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Newsletter | Revolving Door Project Newsletter | September 28, 2022

The Return of SCOTUS

Executive Branch

Looking backwards and ahead to SCOTUS cases rattling the executive branch.

This edition of the Revolving Door Project newsletter was originally published on our Substack. View and subscribe here.

We certainly haven’t missed parsing the legal hocus pocus of this extremist SCOTUS over the past couple months of summer recess. Tragically, we’re now only days out from the beginning of the 2022-2023 term on October 3. Heedless of John Robert’s pleas to treat his overwhelmingly distrusted council of nine as a legitimate authority, we expect he’ll find as SCOTUS returns to the news cycle that the public has yet to get over the ongoing consequences of the Court’s betrayal of the public interest. Another nightmare term might just hasten Democrats building the power and will to actually reform a broken SCOTUS. 

A sampling from this week’s news cycle alone: “Republican abortion bans restrict women’s access to other essential medicine.” “Arizona Judge Reinstates Strict Abortion Ban From 1864.” “Biden says Catholic Church wouldn’t agree with Graham’s abortion ban.” “Gender divide prominent as male-dominated legislatures debate abortion.” “What’s the difference between miscarriage and abortion? For some women, it’s hard to tell.” “These US Abortion Restrictions Threaten Reproductive Health Everywhere.”

Earlier this year, we saw a number of Supreme Court cases decided with significant consequences for the executive branch, including Biden v. Texas, National Federation of Independent Business v. OSHA, West Virginia v. EPADobbs v. Jackson, and others. (We wrote about Biden’s “familiar excuses for inaction” in the wake of Dobbs here.) With the exception of Biden v. Texas, the aforementioned cases defied legal precedent to put constraints on federal and/or executive branch authority. As “Law Dork” writer Chris Geidner summarized back in July, “The Supreme Court is making governing difficult.” 

Looking Back

To begin with the exception—in Biden v. Texas, SCOTUS held 5-4 on June 30 that the Biden administration was allowed to rescind Trump’s misleadingly named “Migrant Protection Protocols,” also known as the “Remain in Mexico” policy. Several weeks later, the policy was finally formally ended. The Department of Homeland Security said in a statement on August 8 that the program has “endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border.” Unjustifiable human costs is right: in the policy’s first year alone, hundreds of asylum seekers suffered “kidnapping, rape, torture, assault, and other attacks” while being deprived of their legal right to due process.

But, about those “other priority efforts to secure our border”… The Intercept reported last week that the Biden administration is ramping up construction on Trump’s border wall. Ryan Devereaux points out the intersectional violences at play here against vulnerable migrants, indigenous people, and ecosystems all at once: “The wall’s environmental harms have been particularly acute in southern Arizona, where CBP used explosives to blast through large swaths of protected land — including sacred Native American burial grounds and one-of-a-kind wildlife habitats — in service of Trump’s most expansive border wall extensions. Starting next month, contractors will return to the Sonoran Desert in Arizona to resume work on the wall, senior CBP officials said in a public webinar.” This should be bigger news. 

Back in January 2022, National Federation of Independent Business v. OSHA saw the Supreme Court striking down the Occupational Safety and Health Administration’s COVID-19 rule requiring that large employers have their employees either get vaccinated or wear a mask and test weekly. The non-conservative Justices’ dissent excoriated the decision: the Court acted “outside of its competence and without legal basis” to undermine the expert government officials whose job is to make and enforce rules about workplace safety, amidst a pandemic that is a considerable “menace in work settings.” 

Of course, liberal leadership in Congress and the White House has now joined the science deniers across the aisle in abrogating responsibility for curbing the pandemic’s spread, making Breyer, Sotomayor and Kagan’s baseline concern for the health of Americans seem almost anachronistic—a relic of a bygone era where mainstream Democratic policy wasn’t distinctly at odds with a public health-informed agenda. (Though on further reflection, maybe current COVID policy is actually fairly in line with America’s longstanding blindspot when it comes to prevention of disease.)

As for West Virginia v. EPAwhich curbed the EPA’s authority to establish carbon emissions caps under Section 111 of the Clean Air Act, we emphasized in our press release responding to the decision that the blow was significant but not lethal. “Many tools to stave off the climate crisis and facilitate an equitable energy transition remain available to the EPA, to the White House, and to Congress. Months of speculation, dread, and strategizing preceded this opinion. Now that its scope can finally be known, what remains is the dire urgency of action.” 

The Environmental Protection Agency continues to have many avenues to make good on its mandate. Check out the EPA chapter of our climate-focused Corporate Crackdown Project report for many actions the agency could take without authorization from Congress to protect ecosystems and assist pollution-burdened communities, while cracking down on corporate environmental crimes. What the agency desperately needs is more funding and staffing. Whatever continuing resolution is passed in these next few days, it’s sure to hold EPA funding steady at unacceptably low levels.

Looking Ahead

Treading closely on the heels of West Virginia v. EPA is its ugly cousin Sackett v. EPA, which is scheduled for oral arguments on October 3, the first day of the new term. The ostensible question in this case is, “What is the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act?” But as NRDC reframes it, SCOTUS really gets to decide the answer to this question: “When wetlands are intrinsically connected to other indisputably protected waters, does the Clean Water Act prevent their unregulated pollution and destruction?”

The complex interrelationships of bodies of water, underground and on the surface, perennial and ephemeral, is certainly beyond the scope of nine judges’ expertise. But that won’t stop them from taking this opportunity to define “Waters of the United States” out of the hands of subject matter experts. 

Over and over again, whether it’s workplace safety rules designed to limit a disease’s spread or a big-tent definition of federal waters capacious enough to bring under protection ecological webs that we’ve yet to chart, SCOTUS seems to enjoy imposing siloes on interconnected issues, wrenching apart the government’s ability to address intersectional issues at once. That’s a favored tack by the right in general: sewing artificial divisions. The left’s response should involve embracing the intersections, the common ground between, against the common enemy (entrenched corporate power).

There are two upcoming cases with arguments scheduled for November 7. In SEC v. Cochran and Axon Enterprise, Inc. v FTC, the Supreme Court will decide whether federal district courts should be able to hear constitutional challenges to procedures at the SEC and the FTC. Justice Department attorneys have argued that this would be a “waste of judicial resources,” among other things. Naturally, the anti-corporate-accountability Chamber of Commerce is zealously in favor of being able to challenge the procedures and (in the FTC’s case) very existence of enforcement agencies in the lower-level courts. 

Other upcoming SCOTUS cases with ramifications for the executive branch include Haaland v. Brackeen and Jones v. Hendrix. Haaland v. Brackeen, consolidated with three other cases, involves a frightening challenge to the constitutionality of the Indian Child Welfare Act of 1978, which preferences Native adoptive families for Native children. 497 tribal nations, 62 Native organizations, 20 states and the District of Columbia, 87 congresspeople, and 27 child welfare and adoption organizations are among those who submitted amicus briefs in favor of upholding the ICWA, which is considered a gold standard for child welfare laws. It is deeply unsettling for the constitutional recognition of tribal sovereignty to be brought into question—and left in the hands of nine unaccountable judges. 

Jones v. Hendrix involves federal prisoner Marcus Jones, who finds himself in a fairly unique situation. Jones didn’t challenge his conviction on certain grounds because at the time established precedent wouldn’t allow it, but that precedent was later overturned by the Supreme Court in a retroactively applicable decision. The question now is whether he may apply for habeas corpus relief. The Justice Department has put some interesting limits on its involvement in this case. The Solicitor General, who represents federal prison warden Dewayne Hendrix in the case, submitted a letter to the court in June announcing that the government will defend Eighth Circuit’s decision that Marcus Jones is not entitled to habeas corpus relief, but not the rationale behind that decision. 

There are plenty more cases on the docket for the coming term, including many whose arguments are not yet scheduled. Steven Donziger’s petition, for one, just made it onto the Supreme Court docket. If you’re looking for a recap on how Donziger was doggedly persecuted for years by Chevron after he litigated a multi-billion dollar settlement against Chevron for its damages to the Amazon on behalf of thousands of Ecuadorian villagers, there’s this one in The Guardian. Spoiler: Chevron has yet to pay up, and has instead spent years going after Donzinger in court. 

The focus of Donzinger’s petition to the Supreme Court pertains to how, after the U.S. attorney’s office declined to prosecute Donzinger on contempt charges for refusing to turn over his phone and computer to Chevron’s legal team, the judge made “the extraordinary move of appointing a private law firm to represent the government in prosecuting Donziger.” Guess who the firm appointed to prosecute Donziger previously represented? (Surprise, it’s Chevron.) The petition to the Supreme Court seeks clarity on what authority and oversight (judicial or executive) allows a private lawyer to be selected to prosecute charges in a case that government lawyers declined to prosecute. 

While we’re on the subject of petitions, with the important caveat that the Supreme Court only accepts about one percent of the petitions it receives, a new petition was filed last week by landowners whose homes are imperiled by Manchin’s pet project, the Mountain Valley Pipeline. In a sticky mixture of traditionally left-wing and right-wing priorities—preventing new fossil fuel infrastructure and weakening federal agency authority—the landowners want the Court to limit FERC’s authority to delegate eminent domain to the natural gas pipeline developers. The landowners’ attorney Mia Yugo compared their desired outcome to the Supreme Court’s “recent rulings against federal climate rules and vaccine mandates,” likely gesturing to the outcomes in West Virginia v. EPA and National Federation of Independent Business v. OSHA. 

There’s plenty more to talk about that we’ll just gesture to, like the hot-button issue of whether Clarence Thomas will recuse himself from Jan. 6 cases given his wife’s involvement in attempting to overturn the election results. And then there’s the case that’s probably the biggest elephant in the room—Moore v. Harper. 

You may remember that right after the Court took a wrecking ball to reproductive freedom, it granted review of Moore v. Harper. At the time, it felt like the Court was laying down their final hand of cards, revealing their vile endgame: undermining democratic elections through empowering state legislatures to make the rules about how federal elections are conducted. Matt Ford wrote for the New Republic back in August that while a mild interpretation of the so-called “independent legislature theory” would undermine state courts’ ability to reject gerrymandering by state legislatures, a “more radical version of the ISL theory could open the door to outright subversion of election results.” 

As the days grow shorter, and the Supreme Court continues to blaze its destructive new course, everything from voting rights to indigenous sovereignty is potentially on the chopping block. Perhaps we should offer a disclaimer: this review of some upcoming Supreme Court cases is not intended to legitimize an inherently undemocratic and unaccountable, and increasingly destabilizing, political institution. While we can’t afford to ignore the mess it’s making, we’d like to see political action that meets the demands of the moment, and this (long) moment demands a reformed court. Empty-eyed, reflexive institutionalism can erode the usefulness of political institutions as surely as the rising tides of anti-democratic extremism. 

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

Hack Watch: So About Those Rate Hikes…

The Problem With Emission Reduction Models

FOIA Request: Is Big Tech’s Favorite FTC Commissioner Going To Lobby For Amazon?

Why Progressive Groups Struggled With the Biden Agenda

Executive Branch

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