Leaks, Chevron Deference & Judge Kavanaugh

One of the advantages of having lived on a 50-acre woodlot a few miles outside of town - and I mean a town of less than 10,000 not Chicago, or even Toronto - is you can enjoy guilt-free leaks. No, not that type. Leaks as in a discharge of waste fluid amongst the trees with the only the occasional sound of traffic to distract you.

Why does this matter? Consider Red State's Streiff, who recently pondered on the meaning of the great sort in America and the hidden pleasures of peeing in your own backyard. You can almost hear the sirens already, can't you? Because if a neighbor spies a grown man relieving himself on his property, a quick phone call to police will result in an arrest or at least charges. And many, likely most, would say: absolutely the right thing to do. Lock him up.

Streiff's point was that it's actually fine that America is sorting itself into neighborhoods that share certain values. Perhaps most neighborhoods would call a cop if you're busy working in your back shed and pop out to have a discrete pee. But on other issues, there is clearly a divide, a cultural and social divide that has people moving to like-minded neighborhoods, and therefore voting in like-minded districts.

The NYTimes latest interactive electoral map of America shows this clearly: purple districts are becoming extinct. Red is becoming redder, and blue bluer. And this is not primarily because of gerrymandering tactics but more a cause. Here's a tweet by David Wassserman:

And no, this rapid geopolarization isn't attributable to gerrymandering (though it's helped make partisan gerrymandering much more effective).

In other words, regardless of how local, state, and federal courts rule on specific electoral re-districting, this cultural change is a far more powerful driver of electoral district leanings. And yes, this means a more divided Congress - especially the House - with each side hardening in its positions, less bi-partisan legislation being passed, and more dysfunctional sabotage-like tactics by whichever party is out of power at any given moment.

And that leads to Brett Kavanaugh, Trump's nominee for Kennedy's seat on the Supreme Court. The argument advanced by Democrats is that Kavanaugh's musings during a panel discussion on United States v Nixon in which he expressed some reservations about the 1974 SCOTUS ruling (which obliged Nixon to hand over the infamous tapes as evidence in a criminal proceeding and which trumped Nixon's claim of executive privilege because the issue of national security was not involved) supposedly shows that he would rule against Mueller's probe and allow Trump to squash it.

Firstly, as pointed out by Carrie Severino at National Review, Kavanaugh's writings show he would do no such thing. Writing about United States v. Nixon Kavanaugh stated that the case:

... reflects the proper balance of the President's need for confidentiality and the government's interest in obtaining all relevant evidence for criminal proceedings.

But never mind, Schumer needs any ammo he can find to stall and then derail Kavanaugh's confirmation. But more importantly, Patrick Purtill at The Washington Examiner reviews Kavanaugh's thoughts on what is actually a far more important case when it comes to expansive executive power. A case that, over 30 years later, still helps define the ever-expanding role of the executive versus the legislative and judicial branches of government.

Chevron USA Inc. v National Resources Defense Council Inc.

This 1984 landmark decision created an incredibly permissive legal test for determining whether administrative agencies could interpret a law they were charged with administering as they - and not Congress - saw fit. It represents the entrenchment of the administrative state as practically a separate branch of government. Here's Pat Purtill at The Washington Examiner:

Under Chevron, unless Congress has unambiguously spoken on a topic, the courts must defer to an agency's reasonable interpretation of the law. The courts must defer to the agency even if the court would have reached a different conclusion; the courts must also defer even if the agency has 100 percent changed its position; and finally, the courts must defer even if the agency is deciding the scope of its own power. The court's Chevron doctrine is very accommodative to expansive executive power.

Judge Kavanaugh has been a critic of Chevron Deference - the idea based on the case that Congress should defer to administrative agencies interpretations of a law - on several fronts. But you won't hear about that. Instead it's all about the Mueller probe, and how he'll hand Trump a get-out-of-jail card. Which is ridiculous on too many levels.

But what does matter is the fact that the hardening electoral map of America means that an increasingly polarized and thus dysfunctional Congress will keep handing off much of the details of administering and interpreting legislation to agencies, continuing to give them increasing power over voters' lives.

Judge Kavanaugh as a Supreme Court Justice would be willing to take another look at Chevron deference by all indications. And that's not just a good thing. That's a desperately needed thing if we want Congress to start doing its job again and legislating. Especially in a divided America.

Whether Judge Kavanaugh might frown on a neighbor relieving himself behind the bushes, you'd have to ask him. Or his neighbors.

Posted by Keeley at August 1, 2018 2:15 PM
Comment #429684

Seriously, re-read your article and try to notice when you are not making sense, and making leaps of logic. Court says “courts must defer” which you translate as “Congress should defer”.

“a discharge of waste” is what has happened to our country as putain released a POS on us all. Right wing maggotry feeds on that POS, wallowing in the filth, lies and insanity to propagate more filth, lies and insanity.

This artticle is as pointless as almost everything written under this nom de plume. The son of a criminal “justice” “lends” money to a bigger criminal, and that criminal appoints that “justice’s” choice to the SCOTUS. Congrats on pretending to be able to defend any of that.

Posted by: ohrealy at August 1, 2018 3:41 PM
Comment #429685

Thanks for the interesting post Keeley. In some cities, no one pays attention to folks doing all kinds of nasty and illegal things in the street. Peeing is just a minor infraction.

I see no resemblance, in the investigations by special counsel, of Nixon, Clinton and the 2016 election. Despite what the media and our Liberal Pals believe, it is not an investigation of President Trump. Ask Mueller if you disagree.

A Texas-sized shout-out to Rush Limbaugh. Today marks the 30th anniversary of his highly successful radio show. Rush has informed millions of Americans with his unique political insight and “strategery”.

It would be a dismal political landscape without Rush, and the other conservative talk show hosts his success spawned. I admire Rush for many reasons. He is politically astute, has an unchanging moral compass, and presents his views in an articulate and entertaining fashion.

Our Liberal Pals despise Rush for good reason. They can not compete with his factual presentation which attracts a daily viewership in the tens of millions. They envy his success and can not repeat it with a Liberal mouthpiece despite many failed attempts.

Posted by: Royal Flush at August 1, 2018 3:56 PM
Comment #429686

“Hardening of the electorate” is something this country needs dearly. A hardening of the electorate will allow communities to control their own environment instead of looking to the east with glazed eyes and slack jaw, hoping nine gods will see things their way and dealing with the fallout if they don’t.

If communities gathered on their beliefs, and lived together adhering to those beliefs, wouldn’t governing be much less complicated?

If a true interpretation of the written constitution were followed, and the federal government were to adhere to the constitution, a hardening of the electorate would be required, not stumbled upon. A true constitutional republic with a focus on the individual, not the group, were to exist, the federal government would return to a vehicle to be used between countries and between states, not between individuals and between communities. Individual differences would be handled at the local level and they would be few and far between with a “hardened electorate”.

Posted by: Weary Willie at August 1, 2018 4:50 PM
Comment #429718

“a discharge of waste” is what has happened to our country as putain released a POS on us all.”

Notice that our friends on the left still refuse to accept that them losing an election has anything to do with them or their policies. It is always someone else’s fault, ie they were cheated, even though no credible evidence exists that the election was effected by the russians. Fact….there will always be foreign entities trying to mess with our elections. Fact….there is no proof that this meddling changed the actual vote counts in any state or district, and is now only an issue because the marxist activists have once again lost an election.

To the contrary, most of the available evidence points to a concerted effort by the left, and entrenched bureaucrats to stop Trump from winning the election, and now that he has won to destroy him from within. Suck on it.

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