Ahead Of Midterms, SCOTUS Pursues Its Program

It’s a source of deep frustration to me that Mitch McConnell, having faced down most of the DC Establishment by denying a seat on the SCOTUS to the egregious Merrick Garland, failed to understand what Donald Trump did for McConnell’s judicial agenda. It’s true that McConnell did yeoman work in holding a narrow GOP majority together and confirming three Trump nominees. But it also remains true—for anyone with eyes to see—that, despite his famous stand, McConnell would never have had the chance to get those confirmations through BUT FOR Trump. IMO, only Trump could have pulled off the 2016 win. You would think that career politicians in the GOP would have understood that, at least in hindsight, and realized who got them where they found themselves. But no. Maybe they’ll get another chance after the Midterms, with a majority that Trump will have done much to put in place.

In the meantime, the Trump SCOTUS, after a bit of a slow start, hit its stride last term with blockbuster rulings aimed at rebuilding republican, federalist, constitutionalism. This week they continued that program, having selected more potential bombshell cases for this term. With the oral arguments on affirmative action over, and very reasonable expectations for a drastic overhaul of that entire regime, the SCOTUS will move on to another look at the administrative state. I say “another” because the EPA decision last term was another blockbuster that pointed toward a programmatic demolition of the administrative state in the offing. Next week will feature oral arguments on in the case of Axon Enterprise v. FTC. The Federal Trade Commission, established in 1935, is very much at the heart of the administrative state, and is the chosen vehicle for the Prog’s hoped for transformation of the US economy. The Federalist has an excellent article on this case and it’s promise, which I urge everyone to read:

The Supreme Court Has A Chance To Save The Economy From The FTC’s Wrecking Ball

Next week’s oral arguments could lay the groundwork for revisiting the constitutionality of the FTC and much of the administrative state.

As is often the case, this case hinges on what might appear to be a narrow procedural issue. However, resolution on constitution friendly terms of that issue could open the door to wide ranging court challenges of the FTC’s rulings—much as with the EPA case. Here’s how that works.

The procedural issue before the SCOTUS is simply this (slightly paraphrasing the article): Can constitutional challenges to the FTC be raised directly in federal court, without having to wade through years of administrative processes.

Realistically, why would the SCOTUS take a case raising that issue, when the issue would seem to have been long settled. The strong expectation is that the decision to take the case was driven by the desire to put constitutional challenges to the FTC on steroids—judicially speaking. Sidestepping administrative processes controlled by the FTC and allowing constitutional challenges to go straight to the federal courts will speed up those challenges—as well as bringing specific factual situations before the courts in a more economic fashion.

It’s no secret that all the conservative justices recognize the importance of gaining control over the administrative state—very much including all three of the Trump justices as well as CJ Roberts. The article cites Justice Brett’s view on this, in which he characterizes federal administrative agencies as a “threat” to our constitutional order—I don’t think I’m overstating that. Please note that in the first paragraph we find the SCOTUS of 1935 basically affirming the entire Prog agenda of an administrative state run by “experts”:

In 1935, the Supreme Court upheld the agency’s structure because it believed, the agency had a limited mandate. In Humphrey’s Executor v. United States, the court found that the FTC’s mission was “neither political nor executive” but mainly quasi-judicial and quasi-legislative. In the court’s view, the commission was “nonpartisan,” led by a “body of experts” who had experience in both public service and the “practical affairs of industry.”

Today, courts have become much more skeptical of independent agencies. Several years ago, then-Judge Kavanaugh wrote that these agencies held “massive power” divorced from presidential oversight. As a result, he believed, “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”

…

Far from being non-political, the FTC at times has sought to set the policy agenda for the entire country. In the 1970s, the FTC launched 16 rulemakings that sought to “transform entire industries,” ... Today, the FTC’s chair believes the agency should shape “the distribution of power and opportunity across our economy.” Its Strategic Plan targets health and safety risks and seeks to promote racial justice, important issues but ones that lie far outside the agency’s mandate or competence.

Moreover, far from acting independently, today the FTC appears to act in concert with the White House. In an executive order, President Biden encouraged the FTC to use its authority to implement a “whole-of-government” competition policy. …

The simple change of procedures could end up having significant consequences, all favorable to reining in the administrative state:

As SCOTUS considers the case, it may note that the [FTC] is planning “to replace the free market system with its own enlightened views of how companies should operate.” [Lina] Khan [FTC Chair] has argued for the government to play a larger role in “shaping markets and economic outcomes” while decrying the free market as a “product of metaphysical forces.”

…

In Axon, a strong opinion would help keep the FTC within its constitutional and statutory bounds by allowing companies to challenge illegal agency actions directly in court. The decision also could remind the agency that it operates in a system of government with checks and balances on all three branches of government, including independent agencies.

For example, federal courts would be in a position to prevent FTC rulings from taking effect right from the outset. That would place the FTC on a much more level playing field with the Americans that it regulates.

In short, Trump’s legacy may only have just begun. Keep your eyes on the SCOTUS. The Court showed a will last term to face down a united Dem government. A major wave election can only lend positive support for the Court’s program to rebuild the constitutional foundations of the republic.