Court adjourned

Bad as Trump is, there's plenty more where he came from

There was some cheer on the internet yesterday at the Biden administration’s announcement of its “Time is Money” initiative, through which federal agencies will push back against some of the time-wasting (thereby money-wasting, get it?) corporate tricks with which we’re all very familiar through agency rulemaking.

The one that got the most press traction is the Federal Trade Commission’s proposed Negative Option aka “Click to Cancel” rule which, among other things, “requires sellers to obtain consumers’ unambiguously affirmative consent to the negative option feature prior to charging them” and “requires sellers to provide consumers with simple cancellation mechanisms to immediately halt all recurring charges.” In other words, no more unannounced and unavoidable auto-renews.

I like that, and also the plan to get the Consumer Financial Protection Bureau to disallow on-hold “doom loops” and other scams to discourage customers who are trying to get their damn rights from recalcitrant corporate con-artists.

But if you’ve been watching government rulemaking at all, you know what comes next — some rightwing dickweeds will try to get the rule blocked or killed. And these days that’s easier than ever.

You may or may not have heard about the overturn of Chevron deference in the U.S. Supreme Court’s June 28 Loper Bright decision — which, like a lot of Roberts Court bullshit, was not unexpected but still hit like a ton of bricks.

You probably know this but, briefly: SCOTUS’ 1984 decision Chevron USA v. National Resources Defense Council established a precedent that when federal agencies took the broad mandate of a federal law and made rules to effectuate it that, in their details, are more explicit than the law itself, courts should not interfere if these rules are on their face “reasonable” attempts to implement the law. Hence, the “deference.”

But in Loper Bright Enterprises v. Raimondo, SCOTUS explicitly ruled that it’s the courts rather than the agencies that will decide whether the law has been properly interpreted by the regulators. (Roberts himself said this put a “tombstone” on Chevron deference.)

You see the problem — well, problems plural: As the liberal Justices noted, this took decisions about how to reduce pollution, enforce safety standards, plan highways etc.  out of the hands of experts hired to put such laws in action and gave them to judges (most of whom, the liberal Justices refrained from mentioning, don’t know shit about shit).

Worse: Basically any pettifogger motivated by ideology or a greedy client can call shenanigans on any rule and, if they can find a court to go along, get the rule stayed and even invalidated.

Guess how this new precedent has been used since then. Look at the headlines: “Air Force Dodges PFAS Water Cleanup in Arizona, Citing Supreme Court Chevron Ruling.” “5th Circuit Appeals Court Sends DOL ESG Case Back to Texas Court.” “Lilly Challenges US FDA Classification Of Obesity Drug Retatrutide, Citing Chevron Overturn.” (Lilly wants FDA’s ruling that Retatrutide is a drug rather than a biologic reversed, because money.)

The biggest loss is the FTC’s recent rule effectively banning most non-compete clauses — which clauses not only prevent executives from jumping ship to another company to ply their trade, but have been used to prevent fast food workers from getting another fast food job. When they don’t protect actual trade secrets, such clauses are not only unfair to workers but can be reasonably said to restrain trade — so the rule is the very model of the liberal-capitalist model whereby both labor and the market get what they need.  

So, of course, a corporate giant, the tax consultancy Ryan LLC (slogan: “Liberating our clients from the burden of being overtaxed” — and you guessed correctly, their clients ain’t fast food workers), got a ruling in, of course, Texas to block it. FTC is appealing — lotsa luck if it gets to Roberts and his crew.

I bring this up not just to bitch, but also to remind you that, though the current drive to keep fascists from taking over the federal executive is serious, and though victory over them (which I still think is within reach) will be heartening, there is still a fuck-ton wrong with the country at present. And as big a lift as the Harris campaign is, getting the rest of it fixed is a much bigger job.

And the people who made it that difficult — like the Federalist Society fucks who put all those rightwing judges in our way — are in my view not just ideological opponents but also saboteurs of democracy. Because their efforts and achievements are not to advance a different approach to realizing the American dream, but to destroy it and return our condition not to that of the Founding, as they frequently claim, but to that of the Middle Ages.

And they’ve had a lot of success over the years, in the courts, in the states, in the advancement of depravity in the Republican Party — and, truth be told, in the debasement of the Democrats as well, who are only hazily beginning to come around from the me-too-Reagan years (and that was a loooong time ago).

This is not a counsel against hope or optimism. It’s somewhat a counsel against horseshoe dipshits who think the parties are the same and we might as well let Trump win. But it’s mostly to say that we’re not just trying to elect some slightly better candidate so we can relax a bit. It’s just a small step in a long-term reclamation projection that will, with any luck, someday make this perhaps-imminent victory (and even defeat, if it comes) look like small potatoes. Keep your eyes on the prize.