Happy Fourth of July (lmfao)

America’s collapse visibly accelerated over the past week—just in time for a national holiday celebrating whatever passes for democracy

This Fourth of July, I find myself comforted by seeing more and more Americans escape the confines of propaganda to finally realize that “democracy in America” has been reduced to little more than a twisted joke.

In the past week alone, our country has taken a beating in more ways than one. The absurdity of the presidential election was made inescapably clear by a debate witnessing a would be autocrat dismantling a doddering president who has long relied on deferential coverage by a press corps inclined to build cults of personality, rather than cover facts in plain sight. Biden’s obvious decline is merely one among them. His record of lifelong conservatism, and repeated habit of lying to serve his own ambitions, offer other examples.

While many writers have reflected on Biden’s collapse on national television, and foolish refusal to step aside in order to allow a more qualified candidate to take his place, far fewer have examined the cascade of horrors emanating from the Supreme Court.

In a single week, the right wing Court dismantled the administrative state on which America has relied since the Second World War, criminalized poverty & homelessness, and openly invited corruption in Washington—not once, but twice.

If democracy was in a coffin before, the last week pounded nails into it. Having sounded the alarm for decades only to be ignored, and then falsely accused of misconduct when I posed a threat to the establishment, I can’t say I’m surprised.

Biden already lost

Biden’s long history of lies—which doomed more than one of his presidential campaigns before winning the White House—was conveniently forgotten by journalists as soon as he became president.

But his ascension to the White House was ridiculous in the first place. 

Obama threw Biden a lifeline in 2008 when naming him his vice president. By that time, Biden had already lost several presidential election campaigns, and was nearing the end of his long career in Washington. Obama picked him to signal to Wall Street that his administration would be pliable and willing to serve the whims of capital, as Obama proved in the 2008 financial crisis and in his signature healthcare reform.

Obama threw Biden another lifeline in 2020 in order to block the front runner favored by a majority of democratic voters, because Bernie Sanders leaned too far to the left for his political taste. Obama’s machinations supporting Biden were not motivated by electability. In poll after poll, Bernie not only beat Donald Trump, but did so by a vast margin unrivaled by other candidates, including Biden.

Yet, Democratic party insiders led by Jim Clyburn (D-SC) and encouraged by Obama pushed the many competing candidates out of the race in order to consolidate centrist support around one of the weakest candidates in the field, with whom we have been saddled ever since.

We said at the time the Democrats would rather lose with Biden than win with Bernie. We were unfortunately correct—even if four years too early. 

A court hellbent on demolishing democracy

Who needs experts when you have judges?

For decades, administrative agencies have worked to build and maintain programs serving the American public. Examples include programs to prevent catastrophic wildfires, protect endangered species, test food products for safety, and monitor workplace safety standards.

Since 1981, each of these federal programs have been protected from arbitrary intervention by judges. This regime was enshrined by a Supreme Court case ironically involving the mother of one sitting justice of the Court, and decided by an appellate judge who would go on to serve on the Supreme Court herself.

In 1981, the Environmental Protection Agency was only ten years old. It was the product of a proposal by Republican President Richard Nixon, inspired by a grassroots environmental movement whose influence only waned in the years since then.

At the time, Anne Gorsuch was serving as the head of the EPA. Today, her son Neil is one of the six right-wing radicals on the Supreme Court who voted to eviscerate her legacy.

The EPA announced regulations that defined a “source” of pollution under the Clean Air Act in a way that allowed industrial polluters to evade regulation, prompting a lawsuit by the non-profit National Resources Defense Council (NRDC). When appealed to the U.S. Court of Appeals for the D.C. Circuit in 1982, the three judge panel deciding the case included Judge Ruth Bader Ginsburg, who wrote the court’s opinion 11 years before she was appointed to the Supreme Court in 1993.

Ginsburg’s opinion struck down the EPA’s permissive regulation, and was appealed to the Supreme Court by Chevron, an oil company that favored the proposed rule that Ginsburg’s opinion struck down.

The Supreme Court’s decision in Chevron v NRDC announced a new framework for evaluating the decisions of administrative agencies, and has been cited hundreds of times in ensuing litigation across a vast variety of contexts. It required courts hearing challenges to agency regulations to examine whether the voice of Congress was clear on the precise issue before the court—and if not, to defer to reasonable agency interpretations of the most relevant congressional directive.

Under the new framework adopted by the Supreme Court last week in Loper Bright Enterprises v. Raimondo, judges can substitute their own uninformed whims for the deliberate decision making of administrative bodies wielding substantial expertise. It is a jurisprudential revolution with transformative consequences for the separation of powers, promoting the judiciary at the cost of the administrative agencies that, along with the presidency, comprise the executive branch.

It’s worth noting that the Loper Bright v. Raimondo decision is not conservative. If anything, it is in fact quite judicially radical. But even politically, the impact of the case may seem ambiguous.

In a previous era, conservatives favored the Chevron framework, because it insulated administrative agencies from intervention by courts that, for most of the 20th century, leaned in a progressive direction. 

As the judiciary shifted to the right through the right wing takeover that began in the 90s, those preferences inverted. Conservatives increasingly favored judicial activists on the bench over administrative agencies that they perceived as leaning left, driven by the informed expertise of agency administrators.

While neither coherently left or right, Loper Bright v. Raimondo was one thing, above all else: anti-expertise. The Court has invited judges to disregard expert opinions, and to impose their own, whether supported by expertise or not. That is a remarkable step backwards, privileging judges at the cost of not only federal agencies and administrators who lead them, but also the voters, citizens, and residents protected by those programs.

In the week since it was decided, lower courts have already applied the new rule in predictable ways. For example, just yesterday, a federal judge in Mississippi struck down federal regulations that previously penalized healthcare providers for discriminating on the basis of gender identity or sexual orientation against patients seeking care.

By leaving federal agencies at the mercy of judicial activists, the court ultimately chose to empower the branch of government that it leads, despite the legitimacy crisis that emerged in the wake of recurring judicial ethics scandals.

Criminalizing poverty

Few signs of America’s moral depravity rival the vast extent of homelessness in a country with plenty of housing stock. Because we treat housing as an investment vehicle rather than a human right, hundreds of thousands of Americans sleep without shelter. No other country in the world suffers from a comparable epidemic of unmet needs.

Homelessness is not a choice, and it is often driven by factors well outside a person’s control. One of the leading causes of homelessness is medical debt. That medical debt has grown to represent a growing rot in the U.S. economy, afflicting many patients and families almost as much as the illnesses that gave rise to it.

Sickness, infirmity, and aging are all inevitable—making homelessness far more like a rite of passage than a reflection of individual failure. The next time you encounter an unhoused person, remember that a severe illness could put you in that person’s position.

Despite the relative ubiquity of the conditions that gave rise to homelessness, the Supreme Court ruled in City of Grants Pass, Oregon v. Johnson that cities may criminalize homelessness. Many unhoused people camp within cities because they have no other option they can reach. Sleeping on the street is not a choice—is an act of last resort by desperate families who were shut out of rental and real estate markets. Yet our right wing Supreme Court just invited cities across the country to place those residents in jail for the minor “offense” of choosing to survive within city limits.

Few observers have noticed how this ruling invites situations that will resemble “sundown towns” in the South—towns that refused to allow black people to stay overnight at the threat of violence or worse.

It is perverse enough that homelessness is such a pervasive feature of life in the United States. The Court’s decision to criminalize the status of people unable to secure housing adds layers of dystopia to that perversity.

What oath of office?

The Supreme Court also endorsed and invited corruption in two different rulings. One authorized policymakers to accept bribes, as long as they are given as rewards rather than inducements. The other invited presidents to commit potentially heinous crimes under the cover of their office.

Either of these decisions alone would represent a crisis in public ethics. Together, they represent a wholesale invitation to corruption at all layers of government.

Snyder v. United States involved a small town mayor from Indiana who was sentenced to prison after accepting a $13,000 check from a trucking company to which his city awarded a contract. His appeal to the Supreme Court claimed that his kickback should not be illegal, because it happened after he awarded the contract to the company that paid him off, rather than before.

The Court’s acceptance of this theory is not only absurd, but also invites predictable results. When I ran for Congress, one of the defining issues of my campaign was the corruption and self-enrichment of an oligarch who I challenged. Snyder simply makes the path to self-enrichment in office—which has been unconstitutional since the founding of the Republic—more direct.

Of all the Court’s various attacks on democracy over the past week, its decision in Trump v. United States has attracted the most attention and driven the most controversy. The name of the case says more than most, and its outcome granted absolute immunity to any president for crimes committed under the cover of official acts. 

In her powerful dissenting opinion (starting on page 68 of this PDF), Justice Sonia Sotomayor described the Court’s decision as a “mockery.” She wrote:

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

While concurring with Justice Sotomayor’s dissent, Justice Ketanji Brown Jackson further wrote (beginning on page 98 of this PDF) that the majority decision invites “practical consequences…a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.”

Writing in the Atlantic, Adam Serwer describes the decision as one that “defeats the purpose of a constitutional democracy governed by the rule of law. It has little basis in the Constitution or in the words of the Founders. It is the outcome that most benefits the Court’s preferred presidential candidate, while allowing the justices to live with themselves for defacing beyond recognition the Constitution and the concept of democratic self-determination.”

Enjoy the fireworks

As an immigrant and constituional lawyer, I find myself frequently impressed by the astounding obliviousness of Americans who take (whatever passes for) democracy for granted.

This holiday, I hope the American anthem and Pledge of Allegiance might resonate differently with people celebrating at parades, picnics, and BBQs. The anthem’s reference to “bombs bursting in air” were penned during a time of revolutionary resistance to British colonialism, but offers a fitting explanation for America’s role in the world for at least the past 75 years.

We may have grown used to those “bombs bursting” in other countries, while denying the “liberty and justice for all” to which the pledge refers in its conclusion. Having long ignored those principles and accepted a pale simulacrum of whatever passes for democracy, America might deserve the ongoing collapse to which many Americans are finally waking up. 

Paid subscribers can access a further story about the rise of fascism in America—not under Trump, but under Biden, and not involving the Supreme Court, but rather his administration. Paid subscribers can also access the most important speech commemorating July Fourth in our nation’s history.