06.14.22

The Scheme 15: The Hothouse and WV v. EPA

Mr. President, I rise now for the 15th time to call attention to the right-wing donors’ long-planned Scheme to capture and control our Supreme Court.  What I will talk about today is that Scheme’s donor-funded doctrine factory, and a case in which The Court That Dark Money Built could weaponize dangerous, concocted doctrines to power up polluters and threaten a basic function of government.

Before I get into this, let me say that I detest and condemn violence or threatened violence against members of the Court, and I object even to protesters making a racket in justices’ neighborhoods.  There’s a lot to be angry about, but the solution is through democracy and laws, not violence and noise.  The capture of the Court by secretive special interests is deadly serious under our laws, and we have to respond seriously under our laws.  Neighborhood noise and violent threats don’t help. 

Let’s remember that all three Trump Supreme Court justices were actually chosen, and then campaigned for, by a dark-money donor apparatus.  Remember, the whole point of the Scheme is to capture the Court so it will deliver big wins for the big right-wing donors, no matter how unpopular or radical those wins are.  Remember that the donor elite behind the Scheme spent hundreds of millions of dollars on an apparatus to capture the courts.  It plotted for decades to seize this power, and set up a system to get its hand-picked, extremist nominees onto the bench.  It instructs those justices, with coordinated flotillas of amicus briefs, so the justices know how they’re supposed to rule.  It’s quite an operation.  

But none of that works – none of that works if judges are following the law as it is — existing legal precedent is the problem for the Scheme.  To accomplish this mission, a radical deconstruction of our laws, the big-donor elite need to destroy decades of legal precedent. 

We got a preview in the looming effort, shown by the Alito leaked draft opinion, to destroy precedent protecting women’s right to decide about abortion, and relocate that right from women to state legislatures.  That’s just the Scheme’s opening act, a sop to one segment of its social issues base.  The Scheme is out to deconstruct American law and destroy established precedent across many areas of the law. 

If you are out to deconstruct American law, and replace it with what the big donors want, you need some intellectual weaponry.  You don’t just need justices who will do what you ask, you need legal theories; you need to give the justices you put on the Court the intellectual artillery, the demolition theories, that will help them destroy the precedents and deconstruct our legal system.  

So, that’s a problem.

But when you’re spending more than half a billion dollars on a Scheme, you can find solutions, and sure enough right-wing donor interests found solutions.  It took time, but the whole Scheme took time.  It took a lot of money, but the whole Scheme took a lot of money.  It took patience and planning, but what a payoff when you succeed! 

And now it’s payday.

The first thing you do is erect an array of legal think tanks, phony “institutes,” the hothouses in which the deconstruction theories are grown; the factories, if you will, where doctrines are crafted, reverse-engineered from the results the big donors want — so willing, complicit justices have the ideological weaponry for deconstruction of the law.

These think tanks do a couple of things:

First, they nurture right-wing legal “scholars” to formulate bogus legal doctrines.  They pay them comfortable salaries, grant them nice titles, and cover their travel to conferences and symposia with fellow hothouse “scholars.”  The whole thing apes regular academia, but this academia-resembling performance has a very different mission.   It has deliverables. 

Second, they systematically cheerlead for their new legal doctrines.  They create an echo chamber of approval for their cultivated fringe ideas.  Once the hothouse conjures a fringe idea, the hothouse bounces it among other so-called “scholars,” and through other anonymously-funded affiliate groups, and through law school debate clubs and conservative conferences (also funded by secretive donors), and into flotillas of scripted amicus curiae briefs — and ultimately into legal opinions.  They create a legitimization process. 

And of course they concoct or retool the desirable theories.

The legal theories are easy to come up with – you reverse-engineer.  You start with what big donor interests want, then work backwards.  And what lots of big donors want – especially fossil fuel companies – is to weaken and disable government regulation.  Government regulators stop all sorts of harmful corporate practices:  pollution of our air, water and climate; dangerous factory-floor working conditions; crooked schemes that cheat investors; snake oil medicines that don’t cure disease; unsafe products; insurance policies that don’t pay — the list is long. 

Demolishing that protective network of regulations protecting Americans’ health, safety, and financial wellbeing is a Scheme priority, and the destruction begins by pejoratively naming the agencies whose work protects us the “administrative state.”

There are many of these doctrine-growing hothouses.  Two examples are the Cato Institute, originally founded by the Koch brothers, and the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School of course.  Both of these groups are funded to pump out and legitimize anti-regulatory fringe theories and talking points.  Think of them as factories for ideological artillery designed for the demolition of federal agencies’ authority, particularly over polluters. 

What do they manufacture?   The concocted doctrines fall into a few buckets:

There’s the so-called “unitary executive” theory, cooked up to argue that safeguards set in place by Congress to protect federal agencies against political interference are unconstitutional. 

Now, if you’re a big donor, and you paid big bucks to get your man in the White House, you want political interference by your guy in regulatory decisions.  Congress built safeguards against that, for a very good reason, but a captured Court could disable Congress’s ability to defend the agencies Congress itself created. 

This “unitary executive” legal theory was the pet theory of the Reagan administration.  It was thoroughly debunked by serious scholars, and rejected initially even by the Supreme Court.  But the right-wing Court-capture apparatus has persistently kept this theory a Federalist Society cornerstone, and diligently packed the Court with new justices more amenable to this nonsense.

Other concocted doctrines also target agencies.  The so-called “nondelegation doctrine” is so radical and meritless that the Supreme Court dismissed it a century ago; except for rare cases, that no longer exist, where Congress might give agencies power with no direction whatsoever.  This “nondelegation” idea has been retooled in the doctrine factories to target agency regulation generally. 

Under this doctrine as retooled, the power is removed from Congress, and given to unelected courts, to decide how questions should be assigned by Congress to federal agencies.   This gives big regulated industries a big weapon to attack the federal government’s ability to regulate problems that they cause, at a minimum tying public protection regulations up in years of industry litigation.

Federalist Society justices on the Court long clamored for the “nondelegation” doctrine, and as new Federalist Society justices get added to the Court it becomes more probable.  Certainly, the dark-money front groups that provide instruction and encouragement to the Federalist Society justices they are in full clamor, using amicus curiae briefs to signal their wishes to the captured Court. 

On now to yet another hothouse-grown doctrine—the “major questions” doctrine—which provides a similar weapons platform to assault public safety regulations.   Where the “non-delegation” doctrine would require Congress to set more specific regulatory standards for agencies to police, the “major questions” doctrine would let the unelected Court determine that some questions are just too big to regulate – too big to regulate at all.  Again, at a minimum, that lets big industries snarl agency protections up in litigation.  At worst, it forces Congress into detailed complex questions that Congress already determined, already determined should better be handled by expert agencies.

And, perhaps I should mention here how hard the Federalist Society justices have worked to create avenues of corporate political influence, including anonymous unlimited corporate political spending, allowing corporate interests to blockade action in Congress, but — while it is relevant here — that’s a longer story for another day.

All these concocted doctrines share the premise that Congress may not deploy agency regulation against certain problems, and that the power to grant agencies authority to regulate in certain areas is instead to be decided by unelected courts; in present circumstances, decided by a captured Supreme Court with members installed by big special-interest money. 

What could possibly go wrong?  

All these concocted doctrines overlook the robust oversight of federal agencies by the people’s representatives in Congress, and also overlooked by courts tasked by Congress with applying the Administrative Procedure Act.  If an agency were to go rogue, Congress can immediately intervene.  Congress can reverse the decision of the agency.  Congress can change the underlying law the agency enforces.  Congress can redirect, defund, or even eliminate the errant agency.  

Moreover, if agencies don’t follow the law as Congress directed, or if agencies behave illogically or unfairly, or don’t give evidence proper consideration, there are avenues of legal relief in court. 

But the donors behind the Scheme don’t want relief from improper or misguided agency action.  They want relief from lawful, legitimate and correct agency action.  This is a power grab by regulated interests, using the Court and they can do it because of the scheme.  It is not a bug that these doctrines threaten harm to an array of basic government functions.  It is their purpose.

Let’s go back to what the right-wing, corporate-funded propaganda machine likes to deride as the “administrative state” — their little code word.   What has really gone on in these agencies? 

I’ll tell you what’s gone on, over nonstop quarreling by big special interests, regulatory agencies made life better.  They made drinking water safer.  They cleaned up smokestacks.  They put airbags in cars and required better seatbelts.  They protected us from contaminated food.  They made medication safer and more effective – no more snake-oil mysteries.  They made financial markets safer places for retirement funds and college savings plans to grow.  They made it harder for stock jobbers to sucker innocent investors.  They required insurance policies to actually pay when an insured risk occurs.  They put an end to people dying from disasters like boiler explosions that used to be a regular thing.

Americans live longer, highways are no longer carnage, products are safer, markets are stronger, and the American economy is more robust.  So whenever you hear the phrase “administrative state,” it should ring in your head an alarm bell that special interest mischief is afoot. 

Which brings me to the ruling expected from the Supreme Court in a case called West Virginia v. EPA.  The fossil fuel interests behind the case are challenging the federal government’s power to regulate greenhouse gas emissions from existing coal-fired power plants.  Put simply, they want to make it harder to fight climate change.  I can’t think of a more important protection for the American people than a livable planet, and I can’t think of a member of Congress who has done more work to achieve those protections then the presiding officer, but the fossil fuel industry is desperate to continue to pollute for free. 

The first thing to know about this case is that there is no case.  The Constitution requires a “case or controversy” before the Court can intervene, and here there is no case because there’s no agency rule to challenge.  The Trump administration rule — a sop to polluters — was thrown out - gone.  The Obama-era rule is not being pursued.  Biden’s EPA has announced it is formulating a new, different rule that it has not yet produced.  It’s not out.  There is no rule in place right now.

That doesn’t seem to bother the Scheme’s new donor-selected majority.  A few Republican states, bolstered and probably directed by an armada of right-wing dark-money front groups, sued to challenge the EPA’s authority — and the captured Court jumped right in. 

Think about that for a moment.  With no actual rule to review, the Court is apparently going to decide this case based on what the Biden administration  might do, or issue some general observations about EPA. Where I come from, that is called an advisory opinion, which our Court is forbidden to do that under our Constitution.  

This is actually a big deal, at the heart of separation of powers.  But the Federalist Society justices packed onto the Court with fossil-fuel dark money are on a mission to deconstruct the “administrative state,” so why let the Constitution get in the way?  Just throw out more precedent, about “case or controversy”!  What’s one more smashed precedent in the captured Court’s cascade of precedent demolition?   The donors don’t care, they’re not finicky; they want results.

Fossil fuel is the political 800-pound gorilla in this country.  The industry spent decades blocking climate action in Congress.  It lurked behind the web of climate denial front groups that sowed false doubt about climate science.  It was their job to mischaracterize the science. It’s behind what watchdog group Influence Map calls the biggest climate obstructing trade organization in Washington, the U.S. Chamber of Commerce.  It maintains its own trade-group hitmen, like the American Petroleum Institute.  It funnels secret money by the tens of millions into Republican SuperPACs and other secret partisan political spending fronts, in a not-so-hostile takeover of the Republican Party.  And it wrote some of the biggest checks to pay for the Scheme, funneled through dark money conduits like Donors Trust and Judicial Crisis Network. 

When I say we now have The Court That Dark Money Built, it is probably more accurate to say that we now have The Court That Dark Fossil Fuel Money Built.  So watch out for the six-justice supermajority that is poised to rule in this no-case “case.” 

It’s no surprise that the amici, the so called friends of the court, gathered in this case read like a who’s who of fossil fuel polluter front groups.  The Competitive Enterprise Institute, for instance, produces hothouse attacks on EPA’s authority — and is funded by Exxon Mobil, Murray Energy, the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute, and Koch brother’s political groups.  Fossil-fuel front group amici and litigants sing a harmonious chorus of “unitary executive” and “nondelegation” and “major question” — all concocted doctrines targeting the “administrative state” they so resent. 

Back before the takeover, here’s what the Court said, in a case called Mistretta, the court said this, I quote:  “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” That is the language of the court,  “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” That’s the precedent of the Court – that’s the law of the land.  And it’s the law that special interests sent these justices to the Court to deconstruct.   So get ready.  

To be continued. 

I yield the floor.