February 7, 2022

By Jeanine Molloff

December 10, 2021, multiple tornados struck the American Midwest, including Missouri, Illinois, Arkansas, and Kentucky, destroying everything in their path. Amazon employees at the Edwardsville, Illinois ‘fulfillment center’ were trapped in a flimsy tinfoil structure as a killer tornado stampeded through the sleepy rural setting. Personal accounts from workers and their families claim that Amazon kept these workers as virtual hostages. Those who wanted to leave were threatened with disciplinary action. Though multiple tornado warnings were issued all day, workers weren’t allowed to access emergency weather reports because of the company’s ‘no phone’ policy, which forbids phones on the warehouse floor. Six Amazon employees died in that warehouse when the roof collapsed. These deaths were avoidable. In fact, you could argue that these deaths were facilitated by Amazon’s systemic abuse of their employees.

    That same night another lethal tornado hit the Mayfield Consumer Products Factory in Mayfield, Kentucky. Severe weather warning systems alerted the community some three hours before the tornado hit. Employees at the Mayfield factory were also being threatened by supervisors with disciplinary action, including termination if they left the facility. The employees remained on site, and eight died in the rubble. Kentucky tornado: Factory workers threatened with firing if they left before tornado, employees say (nbcnews.com) Survivors of deadly tornado that leveled factory sue employer, saying they weren’t allowed to leave | PBS NewsHour

   In both instances, workers placed in danger by their employers have a legal pathway to receive compensation for their injuries and demand their employer be held accountable. This is due, in part to various government agencies such as OSHA, whose job is to defend workplace safety. Without such agency regulation, workers have little to no recourse against abusive employers. These agencies determine and craft regulations meant to implement laws which are generally written in very vague and broad terms. In order to make the regulations fair and subject to various industry standards, these agencies are staffed by professionals in those specific areas of expertise. It should be unnecessary to explain this rationale; that a lawyer shouldn’t be crafting regulations on something like pharmaceuticals, nuclear energy or vaccine safety—but Supreme Court conservatives apparently never received the memo.

   The conservatives on the court would use two legal fictions to deregulate the government, and yes, subsequently create a chaotic system which could, for instance, assign a lawyer to write regulations for nuclear waste storage or decide whether vaccines are medically safe.

   The two legal fictions I am referring to are the ‘major questions doctrine’ and the ‘nondelegation doctrine.’ Both fictions were crafted specifically to undermine any regulations which did not receive a legislative permission slip from Congress for any rules or regulations not mentioned in the original legislation.

   Conservative jurists know these two fictions are based on little more than rhetorical quicksand, but they don’t care. 

   The intent of these two legal fictions is to bring all government agencies other than the military to a grinding halt. The conservatives on the Supreme Court are determined to create a judicial ‘get out of jail free’ card for the growing state of ‘corporate capture’ in the USA. Just this past month the Supreme Court reviewed and decided two cases, specifically engineered to test the “major questions doctrine.” Both cases revolve around vaccine mandates. The court is also scheduled to hear a case which would test “nondelegation” in the coming weeks, and that case is West Virginia v. EPA. If these legal fictions are allowed to stand, the Supreme Court could dismantle much of the federal government, especially in the areas of consumer safety, worker rights, and environmental concerns. 

   The history of the “major questions” doctrine...

   The genesis of this fiction began with a few cases which questioned whether federal agencies exceeded their authority granted by Congress as they interpreted various applications of the law. The goal of this fiction is clear. The “major questions” doctrine was implemented so conservatives could nullify any substantive agency authority and subsequent regulations.

 This was the first step required to dismantle much of government. The far right-wing is patient if nothing else. Historically, there were three specific cases which served as the prerequisite to dismantling regulations which the business community was determined to kill.

Communications Act of 1934—and “major questions” kryptonite...

   The first case dealt with the Communications Act of 1934, which established tariffs on telecommunications companies through the administration of the FCC or Federal Communications Commission. In 1994, the Supreme Court ruled that the FCC couldn’t unilaterally “modify” tariffs for the telecommunications industry, deciding that such modifications would constitute a rewriting or revision of the Communications Act of 1934. Such changes would have to come about through the legislative process. The fact that this action on the part of the FCC would have virtually abolished those tariffs is not the major point. The goal of these judicial activists was to discredit the delegation of powers to federal agencies, as an illegitimate and thus unconstitutional grant of power to the administrative state.

FDA v. Brown & Williamson Tobacco Corp. Case....

   The second case occurred in 2000 and dealt with the tobacco industry. After undeniable testimony that tobacco does cause cancer, the Food and Drug Administration was unable to decide whether those same tobacco products should be regulated, because “Congress had implicitly denied it that jurisdiction through other anti-smoking laws. Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic

FDA V. BROWN & WILLIAMSON TOBACCO CORP. (cornell.edu)

 

The Chevron Deference...

   And finally, we have the third case otherwise known as ‘the Chevron Deference.’ This case attempted to reverse the attack on federal agencies by requiring courts to “defer to federal agencies” any question of agency scope or delegated authority to interpret and act on established federal law. The Chevron Deference represented a direct repudiation of the ‘Major Questions’ doctrine.

   Established by the Supreme Court in the 1980’s, the Chevron deference permitted federal agencies to devise regulations as an application of established law. The court ‘deferred’ to agency expertise in various professional fields from within the ranks--to create policies. This ‘deference’ was believed to be more accountable to democratic needs than the courts. Conservative scholars and litigators didn’t share this belief, rather they viewed the “Chevron deference” as a power grab by federal agencies.

   Neil Gorsuch brought the ‘major questions’ doctrine out of mothballs in the case of the Biden ‘vaccine mandates,’ which the court identified as BST Holdings v. OSHA. The Supreme Court struck down the Biden mandate which could have saved some 84 million lives, but that isn’t the only concern. The implementation of the “major questions doctrine” sets the stage for further judicial incursions against any government regulations that conservatives or corporate interests despise, and Justice Neil Gorsuch wasted no time invoking this judicial fiction during the adjudication of the case, as a direct challenge to the older “Chevron deference” model.

   To quote Matt Ford writing for the New Republic.

“Neil Gorsuch’s recent invocation of the “major questions doctrine” has ominous implications for anyone not keen on watching the government drown in dysfunction.” Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic

    In fact, Ford’s piece in the New Republic explained both fictions as conservative creations created to dismantle government regulations, by making the daily workings of agencies wholly dependent on congressional approval for any actions, no matter how trivial. To quote Matt Ford:

“This obscure judicial precept, which has mostly developed over the past two decades, first arose in a series of cases where the court was asked to decide whether federal agencies had exceeded the power given to them by Congress when interpreting federal law. The thrust of the doctrine is relatively simple: If a federal agency wants to do something big, it must have a clear mandate from Congress to do so.” Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic

   Now, given the fact that most legislation is written in broad and often vague terms, such a ‘mandate’ would force government agencies to come to a grinding halt. Gorsuch would soon claim that the “major questions doctrine” is a necessary and constitutionally supported act, as indicated in his own words.

“Why does the major questions doctrine matter?” he asked. “It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.” Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic

   And yet, what would constitute a …"clear grant of authority from Congress” as Gorsuch pontificates? Would every bit of daily minutia, (no matter how inconsequential), automatically require a congressional permission slip, either in the form of the original legislation or as newly formed amendments signed off into law? Could any organization function in a meaningful way under such uber-micromanagement? The legislative logjams which would result as a byproduct of this philosophy would essentially nullify all federal agency action that conservatives find abhorrent. For Gorsuch to rely on this pseudo-academic relic merely puts his hypocrisy in prominent display.

    Matt Ford added that the revival of the “major questions doctrine” is less about returning power to Congress and more about a cynical judicial power grab, which is consistent with the conservative theology of that wing, a theology which is desperate to eradicate the “administrative state.”

The Nondelegation Doctrine...the other half of this judicial power grab...

   This next judicially ‘legal’ fiction otherwise known as the “nondelegation doctrine” was best characterized by Supreme Court Justice Elena Kagan. She followed the logical steps forward regarding “nondelegation” and asserted that if open-ended delegations of power to federal agencies is deemed unconstitutional, …"then most of government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

Considering Kagan’s remarks, it's not much of a stretch to conclude that rendering most of government unconstitutional, is the long-term goal of the far right and their corporate masters. The GOP has been quite vocal about their quest to destroy all federal regulation outside of the criminal codes. GOP darling, Grover Norquist said it best, as he waxed fondly on the destruction of regulatory government, when he infamously described the government of his dreams. To quote:

“I’m not in favor of abolishing the government. I just want to shrink it down to size where we can drown it--in the bathtub.” Maybe They Forgot What “Conservative” Means at 1115.org (archive.org)

   As it turns out, Neil Gorsuch has provided the means to achieving Norquist’s goal, by reviving the “nondelegation doctrine.” In fact, Gorsuch has a paper trail on this fiction through what is known in judicial circles as the ‘Gundy’ case, but the origins of nondelegation trace back to FDR and the New Deal.

FDR and how nondelegation was used to destroy part of the New Deal...

   The “nondelegation doctrine” traces its creation to the New Deal, and basically claims that no branch of the government has the right to ‘delegate’ their duties and subsequent powers to another branch. This is the argument conservatives used to attack FDR’s New Deal. In the SCOTUS case known as A.L.A. Schechter Poultry Corp v United States, conservatives challenged the National Industrial Recovery Act of 1933, which granted the president the power to designate and approve “codes of fair competition” affecting big industry and guaranteed the workers the right to collective bargaining. Our Documents - National Industrial Recovery Act (1933) The case that ended the National Recovery Act involved the poultry industry, but the effects of this case were much farther reaching. The act mandated the following.

“The NIRA sanctioned, supported, and in some cases enforced an alliance of industries. Antitrust laws were suspended, and companies were required to write industry-wide “codes of fair competition” that effectively fixed price and wages, established production quotas, and imposed restrictions on entry of other companies into the alliances. The act further called for industrial self-regulation and declared that codes of fair competition for the protection of consumers, competitors, and employers were to be drafted for the various industries of the country and were to be subject to public hearings. Employees were given the right to organize and bargain collectively and could not be required as a condition of employment to join or refrain from joining a labor organization.” Our Documents - National Industrial Recovery Act (1933)

   Though NIRA was not fully supported by either side, there were components which helped the average worker, especially the right to collective bargaining. The SCOTUS killed NIRA in the Schechter case and issued two decisions which abolished the increased ‘lawmaking’ power it granted the executive. The Schechter case resulted in the SCOTUS declaring that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” https://supreme.justia.com/cases/federal/us/295/495/#537

   The second case was the Panama Refining Co v. Ryan, where the court decided that the specific problem with the NIRA statute was that …"Congress left the matter to the President without standard or rule, to be dealt with as he pleased,” thus permitting “such a breadth of authorized action as essentially to commit to the President the functions of a Legislature, rather than those of an executive or administrative officer.” https://supreme.justia.com/cases/federal/us/293/388/

   In other words, the executive is tasked with enforcing the law, not creating it. These two cases formed the legal framework that is now known as the “nondelegation doctrine,” which asserts that Congress cannot, under any circumstance ‘delegate’ it’s legislative power away to another branch of government. While it is wise to prevent any president from obtaining the immense power that NIRA granted; the concerns of ‘nondelegation’ architects focused on restraining actions which produced a level playing field for the average worker and lacked the principled stance they shouted from the rooftops. Had FDR been formed in the mold of an autocrat like Trump in the 21st century, such arguments would not have come from conservative ranks.

   So, given this potential to logjam government, how would this doctrine play out in actual court cases? Our latest clues reside with the case known as West Virginia v. EPA and its predecessor, the Gundy case.

West Virginia v. EPA—a direct threat to agency authority....

   West Virginia v. EPA poses the gravest threat to environmental protection to date. It could   substantially dismantle government as we know it. To quote from Ian Milhiser’s piece in Vox; “Neil Gorsuch’s dream case could be the Earth’s nightmare.” A new Supreme Court case could gut EPA power on climate change - Vox  This case represents the latest incarnation from a string of seemingly endless litigation against the Obama era Clean Power Plan, which was never implemented. How Obama's Clean Power Plan actually works — a step-by-step guide - Vox The plan was abandoned and relegated to a legislative “zombie state.” The Biden administration stated last February it would not reinstate the program, yet the litigation determined to destroy it—continues.

   So, why would the fossil fuel industry continue a battle against a dead policy? Well, the battle isn’t limited to the Obama plan. The fossil fuel industry wants the court to strike down any substantive action taken by the EPA to limit greenhouse gases. That’s the short game for conservatives. The long game is far more menacing. West Virginia v. EPA could be the case which grants the Supreme Court a ‘veto power’ not only over the Biden agenda—but also a veto power over any government action or regulation conservatives’ challenge. The Supreme Court’s coming war with Biden, explained - Vox   Unfortunately, there’s far more at stake according to Ian Milliser, writing for Vox. To quote Millhiser,

 “...”The most aggressive arguments against the Clean Power Plan wouldn’t just apply to environmental regulations—they could also fundamentally alter the structure of the US government, stripping away the government’s power on issues as diverse as workplace safety, environmental protection, access to birth control, overtime pay, and vaccination.” A new Supreme Court case could gut EPA power on climate change - Vox

   The ramifications are enormous. Hundreds of laws could be severely weakened to the point of uselessness or perhaps, deactivated, if the “nondelegation doctrine” is allowed to dictate and create a ‘judicial’ administrative state.

Nondelegation comes in different forms....

   Just when you thought things couldn’t get any more confusing, the Supreme Court conservatives’ step in and make the situation worse. Apparently, there are various degrees of ‘nondelegation 'which only the court conservatives can decipher. Like high priests guarding the sacred text, they determine the ‘flavor’ of the month regarding nondelegation.

   Presently, there are two dominant theories on nondelegation, one coming from Justice Clarence Thomas and the other from Justice Neil Gorsuch. Both represent a judicial power grab for the Supreme Court. Of the two, Clarence Thomas’ interpretation is far more radical, and would simply deny federal agencies the right to craft any binding regulations—period. Justice Thomas claims that any government policy or decision which “involves an exercise of policy discretion” in turn “requires an exercise of legislative power.” Dep't of Transp. v. Ass'n of Am. Railroads :: 575 U.S. ___ (2015) :: Justia US Supreme Court Center Obviously, this opinion would immediately and retroactively dismantle all agency regulations, possibly going back for decades. Important and hard-fought existing legislation like the Clean Air Act would be nullified, unless Congress passed a new law which specifically listed every power. Anything omitted by poorly written legislation would not exist. Pair this interpretation with the deadlock generated by the filibuster and we have a recipe for chaos.

   The other theory on “nondelegation” comes from a dissenting opinion in the case of Gundy v. United States, written by Neil Gorsuch. This opinion stated that any law which authorizes or ‘delegates’ a federal agency the power to issue regulations, must be “sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.” https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

   Gorsuch’s approach is, in some ways, more dangerous than Thomas’s. The problems with this statement are vast. What would constitute the criterion for the “sufficiently definite and precise” standard? Who would decide this? This vague language allows the court to take power it was never intended to have.

Conclusion:

   As FDR warned in 1937, “The Constitution of 1787 did not make our democracy impotent.” "One Third of a Nation": FDR's Second Inaugural Address (gmu.edu)  Yet, that is exactly what present conservatives on the Supreme Court are doing by dismantling government via judicial fiat. Agencies like OSHA were created to prevent the type of employee abuse we witnessed December 10, when Amazon employees had to choose between their jobs or their very lives.

   Like the trapped Amazon workers who died due to employer abuse, we are trapped in an existential spiral into the new Slavery 2.0. This is a political and economic slavery which allows no real judicial relief. The radical conservatives on the Supreme Court have abused the trust of their appointed office. They steal power using legal fictions born from rhetorical deceit and entrenched hubris. Justices Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and Coney-Barrett have cynically banded together to sacrifice actual democracy on the altar of litigious procedure and judicial dictates. The architects of this power grab, namely Kavanaugh, Thomas, as especially Gorsuch have created a framework to justify this new Slavery 2.0. There are no physical shackles or whips, but it’s slavery.

   This is the slavery of sweatshop labor, which demands workers risk their lives for starvation wages. This is the slavery which grants billionaire employers like Jeff Bezos the unearned privilege to abuse employees and face no legal consequences for that abuse. This is the slavery that cynically strips workers of any rights—other than the ‘right’ to work until they drop—dead.

   Political scientists may term this legal structure ‘oligarchy’ or even ‘predatory capitalism,’ but such jargon merely disguises the true nature of this judicial conspiracy, which is quite obviously—slavery. A former Supreme Court used similar rhetorical deceit to justify slavery--in the Dred Scott case. Today’s SCOTUS conservatives use equivalent rhetorical deceit to justify a new slavery—based not on race, but on employment servitude.

   What the nation witnessed on December 10, 2021, was a mere prelude to the corporate abuse SCOTUS conservatives would unleash on the average American daring to demand something we have never had—and actual democracy.

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