Friday, October 29, 2021

Last Call For These Disunited States, Con't

I've been talking about the biggest single threat from the Robert/Trump court being the elimination of nearly all federal agencies by declaring them unconstitutional, and now the Supremes have the case they can use to render agencies like the EPA, CFPB, OSHA, FDA and the regulations they use to protect us completely null and void.

The Supreme Court on Friday agreed to hear a challenge to the Environmental Protection Agency’s authority to regulate power plant emissions, in a case that legal scholars say could undermine Congress’s constitutional authority to delegate power to federal agencies. Some argue that such regulation — not just by the EPA, but in President Biden’s vaccine mandate as well — is unconstitutional because of a somewhat arcane legal doctrine called the “nondelegation doctrine.” This theory holds that Congress cannot delegate broad policymaking authority to government agencies.

Why does this argument matter? Our research finds that if the Supreme Court were to invalidate either the EPA’s authority or the vaccine mandate under this doctrine, it might unravel nearly every major law Congress has passed since World War II. Nearly every one of these laws involves delegating authority to U.S. agencies.

Let’s look at this more closely. The nondelegation doctrine was an approach the Supreme Court sometimes relied on to strike down laws until the 1930s. According to this constitutional doctrine, Congress can delegate powers to government agencies only if it also gives those agencies clear, specific directions about what actions to take. Because legal commentators regularly say the Supreme Court has not used this doctrine to strike down any policies since the 1930s, they usually describe it as “moribund.”

But did it ever exist? Recent research shows, in fact, that the Supreme Court did not often use this doctrine before the 1930s — and that the Founders themselves often delegated authority to executive agencies, indicating they believed delegation was consistent with the Constitution.

Nevertheless, as legal scholar Nicholas Bagley has pointed out, U.S. state and federal courts are increasingly relying on this doctrine to challenge and strike down laws. What’s more, several members of the Supreme Court, led by Justice Neil M. Gorsuch, have signaled that they’re open to striking down laws based on this doctrine. In fact, the court’s majority mentioned concerns about delegation when it struck down the Centers for Disease Control’s eviction moratorium.

Their next opportunity to use it might come with the EPA case or when opponents challenge the Biden administration’s vaccine mandate after regulations are issued, since in both cases some opponents are relying explicitly on the doctrine. Or they could use it when, as expected, they hear Kelley v. Becerra, the latest challenge to the Affordable Care Act, which is making its way through the courts and close observers expect to succeed in the U.S. District Court.

So what would a reinvigorated nondelegation doctrine do to the U.S. government? Justice Elena Kagan wrote in her minority opinion in Gundy v. United States that if the Court starts striking down congressional delegations of authority, “then most of Government is unconstitutional.


It would mean the end of every major law passed since World War II, folks.  The Voting Rights Act, the Civil Rights Act,  the Fair Housing Act, the Affordable Care Act, nearly 75 years of robust federal action would come to an end.

Red state Americans, us Black and Brown folks out here in Trump country? We would truly be at the mercy of the states.  We'd have no protections at all. We'd be well on our way to permanent fascism, with Jim Crow and second-class status the law of the land for millions who would never be allowed to leave.

And this is where we are headed, and have been for years.

The 2022 Money Game

Axios's Lachlan Markay gives us the GOP Super PAC plan for 2022, and it's all about very, very rich people buying targeted digital advertising for the candidates they want to win.

Republicans are increasingly rethinking how to use one of the most potent political tools of the modern era, the super PAC, GOP operatives tell Axios.

Why it matters: Super PACs are generally thought of as vehicles for massive political ad buys. But Republicans are employing them in more targeted efforts to build the party and its candidates a more robust grassroots fundraising operation.

What's happening: The trend is evident in Ohio, where Republican Senate candidate J.D. Vance enjoys the backing of super PAC Protect Ohio Values. It's largely financed with $10 million from billionaire tech investor Peter Thiel. 

POV hasn't spent a dime of that massive war chest on TV or radio advertising, even as groups backing Vance's primary rivals spend huge sums on broadcast ads attacking him. Instead, POV's direct pro-Vance advocacy has come in the form of digital ads and text messages. It's spent hundreds of thousands more on data modeling, polling and research — activities traditionally housed in a campaign itself.

The result is a primed list of donors and supporters that Vance's campaign itself can tap for financial backing.  It started doing so last week, when the campaign began sending fundraising emails to the Protect Ohio Values email list — a perfectly legal maneuver, as long as the campaign paid fair market value to rent it.

What they're saying: “Having substantial early support lets us do innovative things we wouldn’t otherwise have the time to do, and helps us act as a force-multiplier over the course of a race,” POV executive director Luke Thompson told Axios.

The big picture: Republican super PACs have outspent their Democratic counterparts in five of the six election cycles since the Supreme Court's "Citizens United" decision, according to OpenSecrets data.

But there are fewer restrictions on money raised by campaigns directly, and they pay lower rates for broadcast advertising. In general, that makes each campaign dollar more valuable than each super PAC dollar. Republicans want to translate more of their independent groups' huge "soft" money support into "hard" dollars for their candidates and party committees.

So Super PACs are covering the digital ad game on Facebook and Google, and campaign dollars go to traditional ad buys.

But of course, that means basically unlimited money for wealthy donors to buy ads for candidates like Vance, who belong in a comic book rogue's gallery more than Congress.

Sour Virginia, Con't

Considering how badly state polling did in 2020 in underestimating statewide races in general, I have a very bad feeling about Tuesday's gubernatorial race in Virginia.

Virginia’s race for governor is a toss-up as Tuesday’s election draws near, with 49 percent of likely voters favoring Democrat Terry McAuliffe and 48 percent favoring Republican Glenn Youngkin, according to a Washington Post-Schar School poll.

The result is little changed from last month, when a Post-Schar School poll measured the race at 50 percent McAuliffe-47 percent Youngkin — although the Democrat’s six percentage-point edge among all registered voters in September has narrowed to three points in the new poll, at 47 percent for McAuliffe to 44 percent for Youngkin.

Youngkin is fueled by an 18-point advantage among independent likely voters, up from an eight-point advantage last month — a significant swing in a group that could determine the election’s outcome. While Virginia does not register voters by party, 33 percent of voters in the poll identified themselves as independents. That compares with 34 percent who said they consider themselves Democrats and 27 percent who said they are Republicans.

The Post-Schar School poll, which was conducted Oct. 20-26, finds a larger share of voters saying education is the top issue in their vote compared with the September poll, with fewer citing the coronavirus as the biggest factor in their decision. The survey interviewed 918 likely voters reached by professional interviewers on cellphones and landlines, with a margin of error of plus or minus 3.5 percentage points.

Third-party candidate Princess Blanding accounts for 1 percent support among likely voters, which in a tight race could make a difference. Blanding, who is campaigning on racial justice as a member of the newly formed Liberation Party, is most likely to draw votes from McAuliffe.

The election also features contests for lieutenant governor and attorney general, as well as all 100 seats in the House of Delegates. Democrats are defending a 55-45 advantage in the House, with Republicans targeting several suburban swing districts — and a few close rural races — that could tip the balance of power.

Early voting ends Saturday, with polls open Tuesday from 6 a.m. until 7 p.m.
If Youngkin is able to mobilize enough cultists on Tuesday, he wins. The polls in general have seen a major shift in his favor in the last two weeks.  Five Thirty Eight has the race tied thanks to a FOX News poll that has Youngkin up by a whopping eight points.

The problem is the race will be close enough for Youngkin to scream ELECTION FRAUD11!!1 should McAuliffe's early voting lead stand up,  and Trump and the rest of the GOP cultists will pile on. The potential for Tuesday's results to be a powerkeg in search of a spark is ruinously high. We've already seen deadly political violence in Virginia four years ago, hell the trial of Trump's "very fine people" in Charlottesville is going on as we speak.
I just have a tremendously bad feeling about next week.


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