The Uniform Code of Military Justice is Neither Uniform, or Justice, Part III

The Chevron decision opens the door for justice to enter the military.

By Rich Kozlovich

Over the last couple of years I've been involved in discussions regarding military justice, and as I've often stated, and written (Here, and Here), "the Uniform Code of Military Justice is neither uniform,nor is it justice.   

When serving as an enlisted man in the military it becomes abundantly clear the system is rigged against you.  And truth be told, given that so many military people are in their late teens or early twenties, there's a degree of understandably for that.  They rig the system to keep all the wild impulses of all those testosterone filled young men under control.  But it's not uniform, nor is it justice.  Mostly, it's big egos, bad attitudes, and politics.   

I served, I hated military life, and l despised the officers. If they tried to pull the crap they get away in the military in the real world they'd get smacked in mouth.  I still despise the officers, and given what's going on in America's military shows they deserve to be despised.  They weren't treasonous then as they are now, but that's only because the ground wasn't fertile for treason as it is now.   And that permeates military justice at all levels.  Some people are special, and some aren't, especially when it involves some officers.

A general kicks off a plane between 50 and 100 people, some of whom were most likely killed, to bring back a war trophy, all of which was against regulations, and nothing is done.   All par for the course with the upper ranks of the military.  An enlisted man would be been thrown in prison.

It's rigged, and I've often cited the movie "A Few Good Men", as the example.  Another great example was a far less known movie with Robert Mitchum, A Man in the Middle.  Not as well known as A Few Good Men, but it was insightful, it was disturbing, and it was thought provoking, specially for that time frame, which is why I remember it so well. 

The brass wanted a man found guilty of murder, of which he is, but there's only one problem.  He was nuts.   While he's clearly insane they rig the evidence to make it look otherwise in order to find him guilty for political expediency.  Not insane, guilty!   But the defense council refused to go along with that, and it's made clear in the movie his decision to refuse to go along to get along will impact his military future.   That's the Uniform Code of Military Justice.

On July 28, 2024, Chase Spears published this article, With Chevron Dead, It’s Time to Challenge the Feres Doctrine:

A 1950 Supreme Court ruling in Feres v. United States, this dark precedent prevents military members from suing the U.S. Government for injuries incurred on active duty. With the exception of pharmaceuticals that produce Covid gene therapy shots, no other line of work is afforded such protections.  Thus, military commanders have been legally shielded from the consequences of their decisions over American citizens in the ranks for over seven decades now. 

In a rare moment of judicial sanity, the 9th U.S. Circuit Court of Appeals ruled that the Feres Doctrine does not prevent a military member from suing another military member for committing sexual assault, the judges noting that “we are confident in our determination that this act of alleged sexual assault was not incident to military service.” This came the year after the Supreme Court refused to hear a case involving a woman who was raped during her time as a cadet at the U.S. Military Academy.............

When the rights of military members are violated, they have virtually no recourse within the system, despite the significant portion of taxpayer resources used to fund a litany of investigative agencies. The military service branches promulgate an armada of police and criminal investigative commands to employ against military members, an aura of complete control always being dangled above their heads to encourage compliance. 

In theory, the host of Inspector General (IG) offices across the military command structure exist to hold abusive military authorities accountable. But the IG has no power to act. Its agents merely investigate and report to commanders, who are often the perpetrators of injustice against their subordinates. It takes the exceptionally rare event (usually of sexual or fiscal nature) for higher-level commanders to hold other commanders to account for abuse of authority or deprivation of rights. 

But even these kind of cases have been so badly bungled by this generation’s military brass that congress intervened in 2023 to remove military commanders’ authority to adjudicate accusations of sexual abuse, and other serious crimes. Even in the rare cases where a commander’s injustice is overturned by the military or civil legal system, the offending commander suffers no accountability, no repercussions for the unlawful suffering he or she caused to a fellow citizen in uniform. Thus totalitarian-minded commanders have little reason to worry. If they lose an ill-brought case, they won’t lose rank or position for it.

Not one bit of this has a Constitutional basis for the Feres decision by the Supreme Court.  As has been presented everything is rigged.  All smoke and mirrors to hide the fact military justice is an oxymoron, but now with Chevron overturned it's time for Feres to also be overturned.   
 

Supreme Court’s WOTUS ruling will shake things up across the board

By Bonner Cohen, Ph. D. June 23rd, 2023 44 Comments @ CFACT

Editor's Note:  As you can see this was published a little over a year ago, but in light of the SCOTUS ruling on the Chevron Doctrine, and Trump's almost sure election, I think it's a good idea to remind everyone why his efforts to dismantle the deep state and their corrupt and disgusting schemes they've employed to destroy Americans and the Constitution.  RK 

Last month’s landmark Supreme Court ruling in Sackett v. EPA not only narrowed the scope of the Environmental Protection Agency’s (EPA) authority to regulate wetlands, but it will also have reverberations far beyond the Clean Water Act (CWA).

What began as an effort by Michael and Chantell Sackett to build their dream home on their 0.63-acre lot near Priest Lake in northern Idaho morphed into a 16-year legal battle that ended in a victory for the couple and a defeat for EPA when the High Court ruled that their property was not a wetland and thus not subject to EPA regulation under the 1972 CWA. But in decreeing that the only wetlands EPA could regulate were those with a “continuous surface flow” to a navigable water, such as a lake or river, the court rendered a judgment that will affect other federal environmental statutes as well.

Removing the need for many projects to obtain permits under Section 404 of the CWA, which governs dredge-and-fill discharges, will erase important triggers for National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) reviews, according to George Glicksman, a law professor at George Washington University.

Effects on NEPA and the ESA

“The programs are intertwined in ways that aren’t immediately obvious,” he told Greenwire (June 15). As Greenwire explained:

“Both NEPA and the ESA require federal action to trigger a review, which in turn forces developers to consider their project’s effect on the environment and vulnerable species. Otherwise, a Section 404 forms this federal connection. But without a Clean Water Act permit, that federal nexus – in some cases – disappears.

Depending on the complexity of the project, NEPA, for example, can require either an environmental assessment or a much more comprehensive environmental impact statement (EIS). It can take years for federal officials to complete an EIS, prompting some developers to walk away from a proposed project out of sheer frustration. Before the Supreme Court’s May 25 ruling, an EIS, which included a project’s effect on a wetland with no continuous surface connection to a navigable body of water, prolonged the permitting process. With wetlands lacking that continuous surface connection no longer subject to CWA Section 404 permits, some environmental reviews will be shorter.

As it happens, the court’s ruling coincided with the enactment of a debt-ceiling agreement, which put time limits on the issuance of some federal permits. The result of both developments is less red tape.

Similarly, determining what constitutes a threatened or endangered plant or animal’s “critical habitat” under the ESA will become simpler in some cases because the types of wetlands subject to federal authority have been reduced.

By declaring the Sacketts’ bone-dry property a wetland, and then putting the couple through 16 years of litigation hell, EPA ultimately wound up diminishing its own authority under the CWA. As Professor Glicksman points out, the Supreme Court’s decision also affected two other environmental statutes. For decades, provisions of the CWA, NEPA, and ESA were skillfully used by regulators and special interest groups as a form of federal zoning to snuff out development not to their liking.

To be sure, the ESA is still a hopelessly cumbersome law with a terrible record of recovering vulnerable species. And NEPA still makes it difficult for the United States to carry out much-needed infrastructure projects. But the administrative regulatory state has been dealt a setback, and the country has moved a few steps closer to restoring the Constitution’s separation of powers.

Author

• Bonner Cohen, Ph. D.

  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.

Chevron Attacked the Very Idea of America

Representative Government vs. the Priesthood of Experts

Rod D. Martin Jul 04, 2024

 

Editor's Note:  This appeared in full at John Mauldin's weekly economic update, Thoughts from the Frontline.   I've not asked for, nor have I received permission to publish this in full.  However, I think this is such an excellent commentary on how the Chevron Doctrine allowed and promoted tyranny by the bureaucracy; undermined of the rule of law; undermined of the foundational principles outlined in the Constitution; destroyed the very idea the Constitution is the law that governs government, not the whims of bureaucrats with uncontrolled agency mandates.   As a result I feel this deserves the widest distribution possible.    If the author objects I will break it down to a link. RK

The Supreme Court’s overturning of Chevron was an early Independence Day gift. Chevron stood for an imperial bureaucracy, neither responsible to the people nor accountable to anyone, a priesthood of experts pursuing what Thomas Sowell called “the vision of the anointed”, interpreting, adjudicating, and above all, making the laws we must live by, however they saw fit.

Last week, in their Loper Bright and Jarkesy rulings, the Court overturned that half-century travesty, partly upending the statist technocratic order and, at least to a degree, replacing it with the Constitutional vision of the Founders.

James Madison would be proud.

The Administrative State: Subject-Matter Dictatorships

To understand the principles at stake, we first must grasp the radical shift in governance represented by the advent of the administrative state a century ago.

The Founding Fathers established responsible government: elected leadership that must regularly stand accountable for its actions and their effects. Their Revolution explicitly repudiated the idea of lawmaking and enforcement by far-away elites, in favor of that government which was closest to the people. They recognized the benefit of continent-wide (though not unelected or transoceanic) policy on a handful of key issues; but to achieve that, they created multiple competing elected bodies to check each other’s hubris, and they wrote a Constitution that restricted their new government to only a short list of subjects.

Why did they do this? Because they had experienced the tyranny born of unrestricted arrogance. And while they knew they couldn’t change the nature of man, they could use competition among men to restrain their more venal and predatory impulses.

They thus also created a very small bureaucracy, every part of it directly accountable to one or more elected officials. With no Civil Service Act, and a Senate elected by the state legislatures, if your mailman kicked your dog you could go find your state representative at the coffee shop and complain. Enough complaints and change was certain: elected officials have a lot of incentive to listen.

Over time, usually for practical reasons but increasingly motivated by a very real shift in philosophy, not only did government grow exponentially, but elected officials became both more remote and less able to help. We decided we wanted to “protect” bureaucrats from the “spoils system”, so we made it nearly impossible for Presidents to fire them. We decided to delegate vast authority to those bureaucrats, people whose only constituents, aside from their current bosses, were the companies and interest groups who might hire them later. We did this in the name of “nonpartisanship” and “expertise”.

By the end of the New Deal, we’d curbed representative government at every point, in favor of a permanent unelected elite. And while we did not create a true unitary state as other countries did in the 1930s, we did establish a sea of subject-matter dictatorships: unaccountable entities with nearly unlimited power in their assigned areas.

Take the Environmental Protection Agency as one example. Created by a hodgepodge of executive orders and bits of bills, there is no single enabling act to which one can refer for a clear grant of or limit on its power. Yet the EPA, like countless other agencies, concentrates the powers of all three branches of government in its agency administrator, the de facto dictator. 

The agency makes law, and its lawmakers work for the administrator. The agency enforces the laws that it makes, and those enforcers also work for the administrator. Worse still, the agency employs a small army of Administrative Law Judges, or ALJs, none of them confirmed by the Senate, whom it may haul you in front of whenever it chooses. They work for the administrator too.

All of this is a grossly unconstitutional violation of the separation of powers. It eliminates virtually all checks and balances. And the Chevron Court acknowledged that, to a degree: it said that by 1984, things had been done this way so long that it would just be too disruptive to change things.

In short, Chevron established constitutionality by longevity. You can apply that logic to Plessy v. Ferguson and tell me whether you think it’s a good idea.

Jarkesy and Juries, the Bulwark of Your Liberty  

But Chevron did more and worse still. Chevron largely eliminated your Seventh Amendment right to a jury trial, by almost completely curtailing your right to appeal an ALJ’s ruling to an actual, Constitutionally-authorized Article III court.

Let’s say that again: under Chevron an agency could sue you in front of its own judges, over its own made-up rules, enforced by its own bureaucrats, and you had no right to an appeal. You didn’t even get a jury of your peers.

That last bit is the keystone, the philosophical crux, of the entire matter. It is the core of the disagreement between King George and George Washington, between Madison and Marx.

The bureaucrats argue, as do the Democrats shrieking over Chevron’s overthrow, that the subject matter addressed by the various agencies is so complex, so intricate, so specialized that not only can a jury not understand, neither can an Article III federal court. They tell us in more-and-more blatant terms that, though they constantly pursue rule by unelected judges, even those experts are insufficiently elite. For true “democracy”, we must have rule by a class of super-experts, not subject to any oversight at all.

At every step of the process, Chevron replaced “government by the people” with that priesthood of experts, those who must simply be trusted to be benevolent, all-knowing and true. This is the technocrat’s and socialist’s (but I repeat myself) dream: to eliminate the great unwashed from the process of scientific government.

And if federal judges are too unwashed for our would-be betters, how much more so juries?

But juries matter, and not just because they are constitutionally guaranteed. Judges apply the law, but juries establish the facts: what happened, what didn’t, who’s believable, who’s not. There’s a reason for “of your peers”. The most basic fact which must be established is whether or not the accused had any intent to commit the act for which he’s being prosecuted. The priesthood, far removed from your life experience, is poorly positioned to determine that; your peers can stand in your shoes and imagine themselves in the same situation.

Your jury can also nullify a law they believe to be unjust.

Agency employees, regardless of their title, aren’t going to do that. Most of the time, you’re just going to lose, either outright or through a settlement. And if no appeal is possible, there’s no incentive for the priesthood to be reasonable, not in making law and not in its adjudication. After all, who the heck are you?

It’s worse. Increasingly, agency regulations are “strict liability”, which means that your intent doesn’t matter. By this standard, an accidental killing becomes murder. And speaking of murder, agencies issue not just civil but their own criminal laws, by some estimates as many as 300,000 separate agency-made offenses, all adjudicated solely by their own ALJs with no juries and no possibility of appeal.

Last week, in SEC v. Jarkesy, the Supreme Court upended that, re-establishing your Sixth and Seventh Amendment rights. And the Democrats’ howling began.

Loper Bright and the Abomination of “Chevron Deference”

But the crying was about to get louder. The very next day the Supremes handed down Loper Bright Enterprises v. Raimondo, and wiped out much of the rest of the philosophy back of Chevron.

Loper Bright is about so-called “Chevron deference”, the doctrine that if you somehow do get to an Article III court, that body must defer to an agency’s interpretation of any ambiguity in a law the agency enforces. Chevron deference didn’t just upend centuries of principles of statutory construction. It also neutered the Article III courts.

Again, this was a feature, not a bug. The three dissenting Democrat justices made that clear, by not focusing on the constitutionality (or lack thereof) of Chevron but rather lamenting the priesthood’s loss of power. Their philosophy is simple: the anointed “experts” should rule you. Peasant.

Freedom is impossible if those who wield force are not accountable to the people. But in David Harsanyi’s words, “bureaucrats do not function under a notion of ‘accountability’ that most normal people would recognize. When was the last time an agency cleaned house because its policies had failed? When was the time the administrative state was reined back in any genuine way? How many regulators or appointees are ever fired? If you were as bad at your job as Alejandro Mayorkas, you’d be out of work forever.”

Put more simply: what power do you have to make any of those things happen?

The Founders’ Vision vs. “Our Democracy”

When power is vested in the elected branches, as our Constitution requires, you have exactly that power every election. The Chevron philosophy is the opposite: technocratic at best, socialistic at worst, without accountability always.

But technocracy is failing, and losing legitimacy, everywhere. There’s a reason for the increasingly global populist revolt: the self-anointed elites have lost all touch with those they rule (and rule they do, not serve). George Friedman writes about this, and what he believes will come next, in his excellent The Storm Before the Calm. From a somewhat different direction so does Neil Howe, in his brilliant The Fourth Turning is Here.

The Founders answer was and surely would be smaller government; but even if they could not make government smaller, at the very least they would shift its power back to the elected branches and thus the election process. Give the President the power to replace bad personnel. Give individual House members and Senators enough staff to actually oversee the government we have. Force agencies to defend their “brilliance” before real, constitutional courts. Force Congress to actually legislate, rather than (unconstitutionally) delegating its powers to the bureaucracy.

It is this last bit where the Court failed, at least in part. In Jarkesy, the Fifth Circuit re-established the long-dead nondelegation doctrine 10-6: Congress must not delegate its law-making powers. This would have been the death of the Administrative State, not of the agencies or their enforcement duties but of their subject-matter dictatorships. The Supreme Court did not address that portion of the case, neither affirming it nor overruling it.

This is a shame. Hopefully it will be rectified next term, after the Beltway has had time to adjust to all of the foregoing.

The Founders’ vision gave us the America we know, the tiny colonies huddled along the Atlantic coast that in barely more than a century grew into the colossus of the world, by attracting millions to its opportunity and liberty, and by harnessing their talents “like an invisible hand” to create a near-universal prosperity unknown in all the history of man. Liberty is chaotic, and brilliant, and wildly innovative; and that innovation is called forth by a system that does not direct, but rather allows everyone to imagine the better future that would come from solving other people’s problems, and then doing so not through top-down coercion but through the marketplace.

For millennia, the aristocratic, elitist vision produced a stultified world, in which as late as 1800 fully 94% of humanity lived in extreme poverty, and in which the richest lived far worse than you do. Freedom has doubled life expectancy, put a supercomputer in the hands of billions, and upended tyrannies as old as the world.

But this century-old debate is far from over. Increasingly hostile to the Constitutional order our Founders gave us, Democrats believe technocracy is essential to what they call “Our Democracy”. They are increasingly clear that "Our Democracy" means a priesthood of experts, shielded from accountability or responsibility, making decisions "for the good of the people" without their involvement or consent.

In short, "Democratic Centralism".

Let the reader understand.

The Paradigm Shift of the New Populism

By Jeffrey A. Tucker 

Editor's Note:  This article appeared at Epoch Times.  Mr. Tucker gave me permission to publish his work some years back when he wrote for the American Institute for Economic Research.  RK

The Supreme Court last week reversed a decision from 1984 that was responsible for a dramatic turn in American life. The precedent was called Chevron deference. It said that judges should allow executive-department agencies to make rules that affect commercial and civil life, effectively giving them broad discretionary authority that displaced Congressional and judicial oversight.

The previous rule was designed to unclog the courts from endless litigation over legislative interpretations that was making life difficult for business. The unintended consequence of the shift in 1984 was to increase interventions but not from Congress or judges but from agencies, which blew up in size and authority over the course of 40 years. This was ripe for a hard challenge, and the Supreme Court certainly stepped up.

The new rule (from Loper Bright v. Secretary of Commerce) is that agencies cannot interpret laws as they wish but rather are restrained by the words of legislation from the people’s representatives.

The implications are profound. Above all else, it means transferring responsibility back to the people and their representatives. It is part of a new form of populism that has come about in response to obvious calamities.

Think back to four years ago when agency deference was riding high, imposing an astonishing number of instant laws about medical matters, social distancing, business closures, masking, and even mail-in voting. It was all pushed through by agency authority having nothing to do with Congressional mandate.

Americans suddenly found themselves ruled by a system of government they did not know they had. Consider the declaration that essential workers could work but nonessential workers would need to stay home. Was that a law? Not really. It was more like an edict. No one knew who would enforce it or what the penalties were for noncompliance.

We know now that the declaration came from the Cybersecurity and Information Security Agency, a division within the Department of Homeland Security created in 2018. Its declaration was even more powerful and decisive over national life than the Department of Labor, which was never even consulted.

Again, this was not law and not legislation. It was edict and no one really knew how it came to be that this agency, about which no one knew anything, possessed this kind of power. The offending legal basis was precisely this Chevron deference, which tempted every agency just to go rogue and test out its powers whenever it wanted to.

In those months and years, we came to be ruled by credentialed experts, not all and not even most but those experts who had close access to powerful agencies. They overrode scientific consensus, popular will, and even settled law. It all happened so suddenly. The goal of crushing the virus through force was never plausible and neither was the notion that we could vaccinate our way out of a fast-moving respiratory infection.

For those still suffering from those days, and that includes nearly everyone, the Supreme Court’s decision in Loper (reversing Chevron) should provide some sense of relief. It will take time for the court decision to have a practical impact but the reality is that if the new rule had been in force four years ago, the nation would have been spared the pain of lockdowns and closures, and probably even the forced vaccination campaign.

The new rule is also consistent with a new governing ethos that is sweeping the world today, against arbitrary rule by powerful elites and toward more democratic accountability. That one idea is now unsettling political systems in the United States, UK, and EU, and beyond. It provides no light to describe this movement as “far-right,” as the New York Times says daily. It is something different.

We might call the ethos the new populism. It is neither left nor right, but it borrows themes from both in the past. From the so-called “right,” it derives the confidence that people in their own lives and communities have a better capacity for wise decision-making than trusting the authorities at the top. From the old left, the new populism takes the demand for free speech, fundamental rights, and deep suspicion of corporate and government power.

The theme of being skeptical of empowered and entrenched elites is the salient point. This applies across the board. It is not only about politics. It hits media, medicine, courts, academia, and every other high-end sector. And this is in every country.

This really does amount to a paradigmatic shift. It seems not temporary but substantial and likely lasting. What happened over four years unleashed this mass wave of incredulity that had been building for decades before. The final straw was the coercive pandemic response in which governments in the world issued stay-at-home orders, closed small businesses, restricted travel, forced masks on the population, and then mandated shots of an experimental technology.

All of this was generally celebrated by most large media outlets, endorsed by academia, and cheered by all respectable opinion. But this was not actually “common-sense public health.” It was radical and far-reaching, and there never was a clear statement of the end goal. Many jurisdictions locked us down until vaccination became available, and then made an effort to inoculate most everyone in the population.

That’s a big plan and it all turned on one key assumption, namely that the shot would work to end the pandemic. It did not work particularly well. It stopped neither infection nor transmission. Nor did the experts anticipate the levels of injury that would result from repeated uses of the same shot, even though the existing literature warned against that exact strategy.

Here’s the problem with blaming all experts for this fiasco. Many people with high credentials were warning against this approach the entire time. They were shouted down and censored. Many others believed that this was the wrong approach but they were prevented for career reasons from telling the truth.

This is the reason why the new populism is strongly committed to free speech. Without the opportunity to discuss and consider the evidence, we miss important truths and find ourselves blindly following the opinions of the most powerful.

To be sure, the word populism has something of a sordid history in the 20th century, mostly due to the political upheavals in the interwar period that profoundly affected industrialized economies. FDR spoke like a populist but so did emergent leaders in fascist Europe. This form of populism was very different from that in our own time. It rallied around the ability of experts to plan the economy and manage the culture.

For example, FDR’s first inaugural address struck populist notes by denouncing “the rulers of the exchange of mankind’s goods” and “the unscrupulous money changers” who “stand indicted in the court of public opinion, rejected by the hearts and minds of men.” In practice, he drew on credentialed expertise and agency power to remake many features of the U.S. economy, imposing price controls, industrial subsidies, tight rules on all commercial transactions, all with the goal of lifting prices under the mistaken belief that low prices were causing the depression.

The grand theory that drove the response to the Great Depression was rooted in the emergent thoughts of John Maynard Keynes, who flipped many features of classical economics on their head. In essence, his theory was that government itself should be empowered to manage the whole through careful manipulation of aggregate supply and demand, a dream that was never realizable or desirable.

In many ways, the New Deal ended up not as a populist effort but one that empowered an elite class of social and economic managers. The pattern grew worse and worse through the decades. The Chevron decision of 1984 codified it into law. But we saw the same patterns in the UK and in European countries. The movements were called populist but they all drew on scientistic schemes for improved economic and social management by imposition from the top.

We’ve been told to “trust the science” for the better part of a century. The push back against that paradigm had to wait until the apotheosis of central planning with the pandemic lockdowns, which were followed very quickly by efforts to use government power to control the climate. Together with that, and all over the world, the mass migration crisis unfolded as governments shifted from their core duties to aspirations of virus and climate control.

Now we find ourselves in the midst of a dramatic paradigm shift, a new populism that rejects the idea that a powerful elite knows what is better for societies than the people themselves. In this view, the new populism is not a return to the interwar variety but something much earlier.

What comes to mind in the American context is the movement by President Andrew Jackson in the 1830s. He stood against the National Bank, fought for the rights of the states against the federal government (except on the tariff), and generally sided with the people over elites. In other words, he embraced the original idea of democracy. If you want to understand what’s happening in the world today in light of American history, that’s a great place to begin.

Chevron Yesterday, Chevron Today, and Anne Gorsuch Burford

By Rich Kozlovich

This article, Chevron is a big, big deal, by Jay Davidson was posted at American Thinker on July 3rd, fittingly as Independence day is drawing nigh, saying:

If you believe in limited government, or fear that government bureaucrats rule every decision, then you’re going to love the ramifications of the Supreme Court’s recent overturning of Chevron v. National Resources Defense Council. Conversely, some prefer not making decisions, or thinks a government employee is somehow better, smarter, less greedy.  Those people will hate this decision. Regardless, elimination of the Chevron doctrine is momentous......

He went on to say:

 In 1984, the Chevron doctrine (deferral) gave powers, that were supposed to reside with Judiciary and the Legislative Branch, to mere government bureaucrats and regulators across all administrative functions.  Chevron was the culmination of a century-long effort to increase the power of one person, the president, through bureaucratic (administrative) control. .......

I addressed that in my article, 1984: The Book, The Court, and Chevron, noting the irony of the book about dystopian government tyranny and the unconstitutional SCOTUS ruling in 1984.  

The author went on to say:  

In 2024, we see that dictatorship ending.  Thanks to SCOTUS, particularly Justice Gorsuch.  And, giving him his due, thanks to President Trump for nominating his three justices

As many know I owned a pest control company for many years and was heavily involved with my industry’s affairs, and Chevron was at the heart of so many issues we dealt with, and I can honestly say I’ve been disappointed in Gorsuch in the past, but certainly not this time.

I don’t know if most are aware that his mother was Anne Gorsuch Burford, the head of EPA under Reagan, and who tried to stop this insanity. She was destroyed by a cabal of bureaucrats, the media, and the green/left, as is discussed in, The Ghost of Anne Gorsuch Burford.  (Editor's Note: The link to the original article no longer works. RK) I have no doubt that impacted his thinking from a very young age, and I’m glad he acted on it. 

In that 2022 article the author claimed: 

With the Supreme Court now set to hear in February a major case over the regulatory powers of the Environmental Protection Agency, some are already suggesting Justice Gorsuch might lack objectivity. The justice’s “tangled history with the EPA” is, Bloomberg reports, a “concern.” It’s a reference to the justice’s mother, Anne Gorsuch Burford, whom, as Esquire retails it, President Ronald Reagan tasked with “running the EPA into the ground.”

“Revenge is a dish best served from a lifetime gig,” write’s Esquire’s Charles Pierce. He refers to the defeat, some 40 years ago, of Burford’s heroic attempt to reform the EPA. Yet there’s no reason to doubt Justice Gorsuch’s capacity to decide objectively the dispute that is at the heart of the case before the court, West Virginia v. EPA. It asks the Nine to roll back the agency’s power to regulate smokestack emissions...........

In years gone by I considered myself an environmentalist, meaning having rational concern about the environment and wanted just laws governing how industry and communities conducted themselves.  After so many years reading and writing about the corruption of the EPA I realize those were dark days intellectually.  I, as was most of America, and mostly still is, were misinformed, uninformed, and thinking the EPA was a really good thing.  It isn't!

• Regulatory Octopus Is Strangling Our Economy

One of my personal friends, who is now passed, was Dr. Jay Lehr, one of the founders of EPA, who helped write their first five foundational pieces of legislation.  Jay said after 1980 they didn't do anything worthwhile and needed to be dismantled, and in 2014 developed a five year plan on how to do it.

I read Anne Gorsuch Burford's book, Are You Tough Enough? ", and the fact is she got caught up in a backstabbing cabal of Deep Staters, environmental activists, RINO's, Democrats and a corrupt media.  When Harry Truman said "If you want a friend in Washington, get a dog", truer words were never spoken. 

I remember those days and the media had everyone, including me, thinking she was corrupt, out of control, and had to go, and her supporters disappeared like a morning fog, and mostly because they weren't really supporters, any more than many of those who served in Trump's administration, taking the paycheck he provided and stabbing him in the back the whole time. 

Doubts have been expressed that even with this ruling it will be impossible to get rid of the thousands of "entitled, nasty, sucking bureaucrats in these agencies".  I don't think so.  

These are bureaucrats who will no longer be necessary.  I see  this as a budgetary issue. In business they’re called involuntary layoffs, and I believe we can get rid of 80% of all the bureaucrats and bureaucracies of the Federal government via the budget, and there are at least 438 of them.  Even paying unemployment benefits, the savings would be massive.

Chevron is a momentously big deal, and as time goes by the deal will get bigger, and better, if for no other reason the cost of regulations.   All these regulations were, and are, a vanguard to George Orwell's book, 1984, a "dystopian novel and a cautionary tale" who wrote about government tyranny controlling every aspect of human life. 

"According to a recent analysis from the Competitive Enterprise Institute U.S. regulatory costs in 2005 were approximately $1.13 trillion, equal to almost half of all of the government's discretionary, entitlement and interest spending ($2.47 trillion), and much larger than the sum of all corporate pre-tax profits -- $874 billion."  The cost of Federal regulations ran to a whopping $2.028 trillion in 2012. 

• Ten Thousand Commandments 2018

The cost of federal regulations to the nation's economy now? According to the National Association of Manufacturers, it's $3.079 trillion.   

Worse yet, these regulatory spider webs can, and actually do, make criminals of innocent people just going about there lives.  Much of that will now come to an end, but all these regulations will have to be addressed via lawsuits and forced off the books.   These agencies won't do it on their own.  Well, apparently that's what's happening.

“The era of ‘trust the experts’ is over,” Mandy Gunasekara, who served as EPA chief of staff during the Trump administration, previously told the Daily Caller News Foundation. “There’s no doubt that crafty administrative lawyers will try to find an end run around this ruling. But overturning Chevron deference, alongside the ‘major questions’ doctrine decision in West Virginia v. EPA, has defanged the deep state. This is a huge win for checks and balances and putting the faceless bureaucrats in their place.”

Press Release From the Buckeye Institute: The Chevron Decision

 Jul 02, 2024 01:04 AM

FOR IMMEDIATE RELEASE July 1, 2024 Lisa Gates, Vice President of Communications, (614) 224-3255 SCOTUS Decision Quotes The Buckeye Institute Liberty, U.S. Constitution, Buckeye Score Huge Wins Columbus, OH – In the U.S. Supreme Court term that ended on July 1, 2024, The Buckeye Institute’s influence at the court was further cemented with numerous citations in the court’s ruling in Culley v. Marshall. In addition, The Buckeye Institute, the U.S. Constitution, and liberty all scored important victories in seven cases before the high court.   Most notable from this term were the extensive citations of The Buckeye Institute’s amicus brief in Culley v. Marshall. Justice Neil M. Gorsuch and Justice Sonia Sotomayor both quoted extensively from Buckeye’s brief, proof that the facts and legal arguments Buckeye’s attorneys put forward are influencing the highest court in the land and that The Buckeye Institute’s brief provides a detailed road map on how to fix civil asset forfeiture.   In his concurring opinion, Justice Gorsuch wrote of the problems with civil asset forfeiture, citing Buckeye:   “Meanwhile, according to some reports, these days ‘up to 80% of civil forfeitures are not accompanied by a criminal conviction.’ Brief for [The] Buckeye Institute as Amicus Curiae 14 (Buckeye Brief).”   Justice Gorsuch further cited Buckeye’s legal arguments when discussing the “booming business” of civil asset forfeiture, writing:    “Other agencies seem to prioritize seizures they can monetize rather than those they cannot, posing for example as drug dealers rather than buyers so they can seize the buyer’s cash rather than illicit drugs that hold no value for law enforcement. See Buckeye Brief 7–8.”   In her dissent, Justice Sotomayor wrote of civil asset forfeiture being used “even when the owner is innocent,” also citing Buckeye:   “In fact, as many as 80% of civil forfeitures are not accompanied by any ultimate criminal conviction. Brief for [The] Buckeye Institute as Amicus Curiae 14.”   In highlighting that civil forfeiture is vulnerable to abuse, Justice Sotomayor further cited Buckeye’s arguments, writing:   “These cash incentives not only encourage counties to create labyrinthine processes for retrieving property in the hopes that innocent owners will abandon attempts at recovery, they also influence which laws police enforce, how they enforce them, and who they enforce them against. See Brief for [The] Buckeye Institute as Amicus Curiae 6–20 (detailing empirical studies on the effect of fiscal incentives in civil forfeiture on law enforcement decisionmaking).”   National Review also noticed the extensive citations to Buckeye’s amicus brief, with Dan McLaughlin writing, “Gorsuch and Sotomayor may be coming from different perspectives on the law, but both cited some of the same sources (such as an amicus brief by the free-market Buckeye Institute) and noted some of the same abuses.”   Furthermore, in seven cases this session, the U.S. Supreme Court adopted arguments The Buckeye Institute put forward in its amicus briefs. In Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the court agreed with Buckeye when it ruled that under the Administrative Procedure Act, the six-year statute of limitations does not start to accrue until an individual or business is injured by the federal regulation in question. In Loper Bright Enterprises v. Raimondo and Relentless v. U.S. Department of Commerce, the court heeded Buckeye’s call and abandoned the Chevron doctrine, calling the doctrine “misguided” and “unworkable.” In Garland v. Cargill the court agreed with Buckeye and ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority when, with the stroke of a pen, it turned more than 500,000 Americans into criminals In Starbucks Corp. v. McKinney, a unanimous court agreed with Buckeye that when the National Labor Relations Board sues a private company, the government should not get special treatment on its request for a preliminary injunction. In National Rifle Association of America v. Vullo, the court agreed with Buckeye that the state of New York’s actions violated the First Amendment and degraded our free speech protections. In Sheetz v. El Dorado County, the court agreed with Buckeye when it ruled that governments cannot use building and other permits to extort money from citizens.   That is a wrap on what was an exciting U.S. Supreme Court term with The Buckeye Institute continuing to make its mark. # # # Founded in 1989, The Buckeye Institute is an independent research and educational institution – a think tank – whose mission is to advance free-market public policy in the states. The Buckeye Institute is a non-partisan, non-profit, and tax-exempt organization, as defined by section 501(c)(3) of the Internal Revenue code. As such, it relies on support from individuals, corporations, and foundations that share a commitment to individual liberty, free enterprise, personal responsibility, and limited government. The Buckeye Institute does not seek or accept government funding. Donate Today! Support The Buckeye Institute The Buckeye Institute | 88 East Broad Street Suite 1300 | Columbus, OH 43215 US

1984: The Book, The Court, and Chevron

By Rich Kozlovich

It's interesting the Chevron decision originated in 1984, and until now the irony of this didn't hit me.  The book 1984 was a "dystopian novel and a cautionary tale by George Orwell" who wrote about government tyranny controlling every aspect of human life.  

Thematically, it centers on the consequences of totalitarianism, mass surveillance, and repressive regimentation of people and behaviors within society. Orwell, a staunch believer in democratic socialism and member of the anti-Stalinist Left, modeled the Britain under authoritarian socialism in the novel on the Soviet Union in the era of Stalinism and on the very similar practices of both censorship and propaganda in Nazi Germany. More broadly, the novel examines the role of truth and facts within societies and the ways in which they can be manipulated.

I'm amazed how I missed that as we're see all this playing out right now, and Chevron was the foundation for much of it.

I've been following and writing about the Chevron decision for years, and now that it's finally been overturned I decided to take a look at the make up of the Supreme Court that made that decision, and once we see that, we can see why they made a decision that turned government bureaucrats into legislators, prosecutors, and often times, judges with no oversight, and no control.

They were, Harry Blackmun, William Brennan, Chief Justice Warren Burger, Thurgood Marshall,  Sandra Day O'Connor, Lewis F. Powell, Jr., William Rehnquist,  John Paul Stevens,  and Byron White.   

The issue was over ambiguity in the interpretation of legislation, and since these bureaucrats are in an unending search to find ambiguity, even where there's total clarity, it was an open invitation for bureaucratic corruption and tyranny.   If there's ambiguity in legislation they should have ordered these agencies to return to Congress for clarification.   But these bureaucrats didn't want Congressional clarification because they knew the regulations they were imposing were never intended by Congress, and the Court was complicit in that political maneuver.  It's clear, at least to me, from the make up of the court, they didn't want the Congress interfering in their ability to legislate from the bench. 

This was a "unanimous" six member decision.  Marshall and Rehnquist recused themselves without explanation, and O'Conner did so because "her father owned stock in one of the parties."  So, let's take a look at the justices that decided to give the bureaucracy unbridled power to legislate from their desks without interference. 

Harry Blackmun was another Nixon failure.  The longer he served the more he "grew" and was embraced by liberals as "one of the enlightened".  He was the author of the Roe v. Wade decision, and spoke disparagingly about Clearance Thomas, who in my opinion has been the finest Justice to sit on the Supreme Court in my lifetime.  Unfortunately he was followed by Stephen Breyer.  Talk about two peas in a pod. 

William Brennan, an massive Eisenhower mistake, and was an out and out radical leftist working to diligently destroy the foundations of American society.  Unfortunately he was followed by David Souter, and while not as bad as Brennan, he was a disaster also.  Then he was followed by Sotomayor.  Apparently the Supreme Court has a seat designated for the insane.

Warren Burger was a Nixon appointee who was perceived as "an advocate of a literal, strict-constructionist reading of the U.S. Constitution", but was viewed as incompetent as a leader, but he wasn't stupid.  He correctly observed  "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people."  He was followed as Chief Justice by  William Rehnquist, and fortunately Scalia took Rehnquist's associate justice seat.  Unfortunately he was followed by Roberts as Chief Justice, another G.W. Bush mistake. 

Thurgood Marshall, was another far left wing nitwit, and it was said as an attorney fighting for civil rights he was excellent, but as a Supreme Court justice, he wasn't all that much, and was considered a lazy judge, and of course those who defended him claimed that was unfair and racist.  In later years it was reported what he was really good at was watching soap operas, and as he aged he fell asleep on the bench and wouldn't retire.  Fortunately he was followed by Clearance Thomas. 

 

Sandra Day O'Connor was considered a moderate conservative swing vote, but the word conservative really didn't apply.  She was nominated by Reagan, and that was an abortion supporting mistake.  There's a reason Obama awarded her the Presidential Medal of Freedom.  Fortunately she was followed by Samuel Alito.  

 

Lewis F. Powell, Jr was another "swing" vote, but like so many of them he swung left, and was followed by Anthony Kennedy, another "swing" vote.  They seem to always appear to me to be swinging for the left field fence. 

William Rehnquist.  While I thought he was a odd character, he was consistently conservative in his views, even at times seeming extreme even to me.  As Nixon's hatchet man H.R. Haldeman stated, "He's way to the right of Buchanan". He was followed by Antonin Scalia as associate justice when he became Chief Justice.

 

John Paul Stevens is another example for term limits on the federal judiciary. He was 90 when he retired.  He was against the second amendment, supported affirmative action, and delivered the opinion on the Chevron doctrine, and was considered the last of the Rockefeller Republicans who thought Donald Trump was bad for the nation.  Unfortunately he was followed by Elena Kagan, and even dimmer wit than he.  

Byron White for the most part was considered conservative in his views, but during that period conservationism wasn't so clear as it is today since most conservatives held some liberal views, but he believed in big government control, and supported Chevron.  He might not have been great, but he was followed by Ruth Bader Ginsburg, a leftist radical.  

That was the court that decided Chevron, and after seeing who they were, it's easy to understand their foundational conflicts with the Constitution, and the spirit of the Constitution, ergo their need to create

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

An open ended concept that allows for abuse, and the courts have abused it massively over the decades.  Ending Chevron will help fix that.

More insights from these articles:

• Inch by inch, the Supreme Court is clawing back constitutional governance in the USA July 9, 2024 by Molly Slag In five important decisions, beginning with the Dobbs case, the Supreme Court is putting the federal government back in its constitutional box......
• Press Release From the Buckeye Institute: The Chevron Decision
• The End Of "Chevron" Deference