Government By Judicial Interference

The Democrats have always been better at utilizing the power of government to advance or delay change in policy. The United States Constitution suggests that “policy” is set by the Congress in the form of legislation and budgeting. But no one has bothered with the constitutional imperatives since Congress began utilizing broad generalities in setting goals for various areas of policy – environmental policy, trade policy, immigration policy, etc. In most instances, such policy matters are kicked over to the Executive Branch to develop the particulars necessary to fulfill the general policy statements. So bad has it become that the “general policy” as defined by Congress amounts to “go forth and do good and avoid evil” and never mind that we will ever check up on you.

The Democrats recognized the power in that method of lawmaking – shifting the details from Congress to the bureaucrats. That power was then institutionalized when the Supreme Court of the United Sates (SCOTUS) decided in Chevron v. Natural Resources Defense Council* to defer interpretation of congressional legislation to the bureaucrats. It was that concept that laid the foundation for former President Barack Obama deciding to bypass Congress on policy matters when he issued his infamous: “I have a pen and a phone” after receiving several setbacks on his legislative agenda and announcing that we would proceed by Executive Order knowing full well that the then-constituted Supreme Court would defer to his “interpretative” authority. I have to say that I have never understood the reference to a phone since Mr. Obama was notorious for failing to consult with anyone.) The Republicans railed against the concept but, as usual, did nothing to return power to Congress – particularly by doing the hard work of providing detail or recognizable boundaries to their legislative acts.

And that did not go unrecognized at the state level – particularly in those states where the governor had the power to appoint when vacancies occurred in state judicial system. In fact, in Oregon, the Democrats who have controlled the governors office for over three decades raised the wholly undemocratic process to an art form where all of the current appellate judges and most all of the trial judges are appointed by the governor and who dutifully resign before their terms are up so as to allow the Democrat governor to appoint their successors. For those of you engaged in normal litigation involving only private parties you are unlikely to notice the difference but when it comes to challenges against the government or government policy, rest assured that the heavy thumb of liberal/progressives will weight on the scales of justice.

So it is not strange to see that President Donald Trump is using one executive order after another to alter the way we are governed. It is also not strange to see the plethora of lawsuits – mostly originated in jurisdictions where appointees of Mr. Obama and now-disgraced former President Joe Biden preside – are being used in an attempt to substitute executive policy with judicial policy.

There are currently over one hundred lawsuits filed by Democrat controlled state and local governments seeking to overturn Mr. Trump’s initiatives – everything from executive appointments, to staff changes, to the color of his tie from day to day. But as we say, this isn’t your daddy’s judicial system. The Democrats are losing these cases as fast at they can find another friendly jurisdiction to try it from another angle. But eventually, one or more of these cases will wend its way to the SCOTUS and, like in the decisions in the Dobbs, Loper, Relentless and Collins v. Yellen, the Democrats will be deeply disappointed in the results.

But the Democrats don’t necessarily commence such litigation with an eye to winning the substantive issues. Often times they recognize that delay is their friend and if they can keep Mr. Trump or other conservatives from implementing their policies long enough that time will run out on the implementation. It is a trick they learned from the environmental wing of their party – litigation involving such things as timber harvest, mining, drilling, use of public lands, etc. can cause such economic imbalance that it is pointless to pursue. A prime example is when the environmental movement – or the government at the behest of the environmental movement stopped the harvesting of trees killed in Oregon’s massive forest fires for long enough – usually two years – that the beetles and bugs so invest the timber so as to render it useless. They didn’t need to win they just needed to delay.

Those Democrats do know how to use power and they gladly shift resources amongst the bureaucrats, the courts and to a lesser degree the legislative process – you know because democracy is such a messy thing and they might just lose on a particular issue.

Cleaning the swamp is going to take a long time and a lot of perseverance.

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*Chevron has recently been overturned by SCOTUS in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. The courts are now unburdened by this deference to the bureaucrats and can make their own determinations based on the arguments presented by all sides.