In the history of mankind, many republics have risen, have flourished for a less or greater time, and then have fallen because their citizens lost the power of governing themselves and thereby of governing their state. TR


Next up for the conservative legal movement: The Deep State

It appears quite possible that the long battle to overturn Roe v. Wade may be won after an opinion reversing the decision was leaked. Democrats are warning that conservatives will next try to topple gay marriage and other social changes that have occurred in recent years.

But according to Washington Post columnist Jason Willick, it is far more likely that the next target will be what he calls the “runaway administrative state.” AKA, the Deep State.

The president and his minions in the bureaucracy are not just enforcing laws, they are creating them. And that has got to stop.

According to Willick:

So where would the movement set its sights next? Reversing rights to contraception or same-sex marriage, as some fear? That’s highly unlikely, as Yale Law School’s Akhil Amar has cogently explained. The court’s controversial abortion precedents are uniquely vulnerable to constitutional attack. Most justices have no interest in pressing against a gay-rights consensus that is increasingly deep and broad. And even if they were interested, the legal opportunities would be few and far between.

While the commentariat was fixated on this red herring, conservative appellate judges from the U.S. Court of Appeals for the 5th Circuit (which covers Texas, Mississippi and Louisiana) on Wednesday issued a ruling far more likely to define the next generation of constitutional conflict. The decision in Jarkesy v. Securities and Exchange Commission wasn’t about a culture-war dispute, but the structure of American government itself — and it reflected the conservative legal conviction that a runaway administrative state is a leading threat to American democratic values.

The 5th Circuit’s muscular ruling, arising from a securities fraud case, significantly limits the prerogatives of the SEC. Until now, the SEC could accuse people or companies of financial wrongdoing and determine their responsibility in an internal “administrative proceeding” instead of through a trial in the judicial branch. These proceedings are run by administrative law judges — civil servants who work for the SEC — and the accused do not have the benefit of a jury hearing the case.

2 thoughts on “Next up for the conservative legal movement: The Deep State”

  1. Also related, Sackett v. EPA II, docketed for the next term.

    For those who don’t remember the original 2012 case, Mike and Chantell Sackett had to go all the way to the Supreme Court, literally just to get a toe inside the courthouse door. The EPA was threatening them with destitution if they didn’t comply with Fedzilla’s demands, but then they also tried to turn around and say that because there was no enforcement being attempted, that this could all be handled by the EPA, and the Sacketts therefore couldn’t go to the judiciary until the EPA dragged them in…at a time of the EPA’s choosing, of course.

    Well. The Court ruled, 9-0, that the Sacketts did indeed have a right to sue the EPA, and remanded the case to the District, without addressing the actual merits.

    Well, now the matter of the merits has finally come round. It’s taken more than a decade, but the Sacketts are returning to First Street.

    Jarkesy is certainly a notable case, but keep an eye on Sackett II. The fact that the Sacketts have needed more than a decade, and two trips to the Supreme Court, to settle a dispute over whether or not a 2/3 acre plot of land qualifies as a wetland, is the sort of teed-up beach ball that a Thomas or an Alito could easily deposit in the upper rows of the center field bleachers.

    1. darkangel, thanks for the info. It’s interesting, relevant information. It is a shame that a U S Citizen has to fight for such a long time trying to get justice done. It’s nerve wracking, it’s expensive, and it takes bull-dog tenacity. Again, thanks for sharing.

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