It’s hard to know which is disintegrating faster, the polar ice caps and glaciers or our democracy. Both seem to be collapsing at exponential rates far more rapidly than anyone could have predicted. And Republicans continue their all-out assault to destroy both, denying climate change and legitimacy to any Democratic political power.
In Oregon, Republicans have provided the clearest and most blatant example of that assault. The Democratically controlled legislature was prepared to pass a bill to take a serious step in addressing the climate change issue by instituting a cap-and-trade program that mimics a similar one in California. Republicans in the Oregon Senate, frustrated by their inability to water down the bill for manufacturers, redirect “money out of social justice programs”, and, in the end, postpone the vote, simply just walked away from their jobs, preventing a quorum and delaying the vote until they return. This follows a similar walkout just last month when GOP Senators objected to hikes in business taxes to inject around $1 billion in Oregon’s public schools. That time, the Senators returned to work after reaching an agreement with Democrats that did not materially effect changes in the tax bill but, in exchange, were able to kill legislation implementing stricter gun controls and vaccine requirements. Basically, by refusing to do anything about climate change, gun control, or vaccine avoidance, Republicans in Oregon are advocating that more innocent people should die. And they are willing to abdicate their constitutional and democratic responsibilities to make sure that happens.
As opposed to their seemingly spineless counterparts in Washington, Oregon Democrats are planning to fine those missing Republicans $500 for each day they do not show up and the Democratic Governor has ordered the state police to compel the AWOL Senators to appear. This use of police power by the Democrats will not stand with at least one Senator who has warned he will use force against the state police who might come and get him. Republican Senator Brian Boquist said in an interview, “Send bachelors and come heavily armed. I’m not going to be a political prisoner in the state of Oregon. It’s just that simple”. Boquist’s statement was seen as a call to arms by Oregon’s right-wing militias who are vowing to protect any GOP Senator from the state police. A member of one of those militias, the Oregon III%ers, vowed “to provide security, transportation and refuge for those Senators in need. We will stand together with unwavering resolve, doing whatever it takes to keep these Senators safe”.
A legislative walkout to block a quorum is a relatively rare occurrence in modern American politics, yet the Republicans in the Oregon Senate have pulled this stunt twice in the span of just over a month. In my memory, the only other time this occurred was a walkout by Democratic legislators in Texas in 2003, which some of Oregon’s GOP defenders now point to. But, in that case, the Democrats were objecting to a Republican mid-decade gerrymander that was designed to effectively neuter their political power. Oregon Republicans are using this extreme tactic to object to a business tax, gun control and vaccine legislation, and a cap-and-trade bill. As opposed to those Texas Democrats, these are not existential issues for the Oregon Republican party.
Incredibly, Oregon Republicans are not the only ones who are apparently willing to use their own private police force outside of the normal rule of law. In Alabama, the Governor just signed a law that would allow an over 4,000 member mega-church in the state to set up its own police force to patrol its sprawling campus that includes schools, a seminary, and sanctuary that house around 2,000 students. This would not be a private security force but an entirely separate and autonomous police force that would be answerable only to church authorities and not the state. It is literally the equivalent of the Vatican’s Swiss Guard, though probably not so fancily attired. Unsurprisingly, the church apparently also has a history of racism and homophobia.
Needless to say, the constitutionality of this state-sanctioned religious police force will be challenged in court. And a recent decision by the Supreme Court would make the constitutionality of such a state-sanctioned religious police force far more likely than anyone can imagine. The case is part of the long-held conservative effort to eliminate the separation of church and state in order to establish a Christian country and involves the government maintenance of a large Latin cross that was originally built by private individuals on private land as a memorial to those who died in World War I. In 1961, the government took over the land and the cross that it contained, as it became part of a busy intersection, and accordingly spent tens of thousands of dollars over the years maintaining it.
That government-provided maintenance was challenged by the American Humanist Association (AHA), with amicus briefs supplied by Jewish war veterans. Under existing precedent, the so-called Lemon test, the case should have been an easy win for the AHA. That test establishes three criteria for determining these kind of Establishment Clause disputes that involve the First Amendment’s requirement that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. First, the government must have a secular purpose; second, the government can not advance or inhibit any religion; and last, the government must not become overly entangled with a religion. The monetary support for maintenance of the cross was clearly, under Lemon, an advancement of a Christian symbol.
In a 7-2 decision, surprising only for the two liberal justices, Breyer and Kagan, who concurred, the Court demolished the Lemon test for “established, religiously expressive monuments, symbols, and practices”. As Mark Joseph Stern points out, the rationale for Lemon’s destruction seems rather circular. “First, ‘identifying their original purpose or purposes may be especially difficult’. Second, their ‘purposes … often multiply’ with the passage of time. Third, and relatedly, their ‘message’ may ‘evolve’ over time—shifting from sectarian to secular. Fourth, removing them once they’ve gained ‘familiarity and historical significance’ may ‘strike many as aggressively hostile to religion’. (Note the contradiction here: A long-standing cross no longer conveys a purely Christian message, but removing it may convey an anti-Christian message. Go figure.)”
More importantly, the conservative justices on the Court made it clear that the Lemon test is effectively dead for all Establishment Clause cases, not just the restrictions to “religiously expressive monuments, symbols, and practices” that Alito laid out in the majority opinion. That may explain why Breyer and Kagan signed on to this restricted elimination of the Lemon test rather than risking its total elimination which Alito himself signaled when an appropriate case presented itself.
In this vein, Kavanaugh, in his opinion, tried to lay out a new test that, as described by Stern, would allow government support of religion if it is not coercive “and it is rooted in history or tradition, or treats religion and secularism equally, or constitutes an accommodation or exemption for the faithful”. In their concurring opinions, both Gorsuch and Thomas wrote that simply being offended by a religious symbol would not be enough to have standing to sue in court. Kavanaugh feels similarly, writing that, although the “sense of distress and alienation” felt by the Jewish war veterans was understandable, the proper venue for their complaint was the state legislature. Gorsuch seemed to interpret the case as now allowing the government to build a public cross without restriction. And Thomas reiterated his long-standing view that the Establishment Clause does not apply to the states, meaning that any state could establish an official religion and, presumably, a state-sanctioned religious police force such as the one in Alabama.
This leaves the Court and the country in a rather dangerous place. Having basically overturned the established precedent for determining what would violate the Establishment Clause, the Court now has no clear rules for making that determination now and it appears the conservative majority on the Court is taking a far more expansive view of the government’s ability to promote religion than we have seen in our lifetimes.
Erasing the line separating church and state was not the only attack on long-established law by the conservative justices on the Court. In another decision, they made clear that they are prepared to restrict the power of federal agencies. The case involved a challenge to the Sex Offender Registration and Notification Act (SORNA) that delegated the power to decide how to register those offenders who committed acts before the law was enacted. Established precedent held that this delegation of power was constitutional as long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform”. And the Court upheld that precedent in a 5-3 decision, with Kavanaugh recused because he was not on the Court when oral arguments were heard and with Alito joining the four liberal justices in the majority opinion.That would all make it seem like a bog-standard decision by the Court based on an over 90 year old precedent.
But the dissent from the Court’s conservatives basically set the agenda for dismantling Congress’ delegation power and realizing Steve Bannon’s dream of “dismantling the administrative state”. Gorsuch wrote the dissent and was joined by Roberts and Thomas. In that dissent, he labeled that 90 year old standard as a “misadventure” and declared that “where some have claimed to see ‘intelligible principles’ many ‘less discerning readers [have been only able to] find gibberish'”. He specifically gives the game away on fulfilling Bannon’s dream, writing later, “Nor would enforcing the Constitution’s demands spell doom for what some call the ‘administrative state’…Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions like those implicated by SORNA. What is more, Congress is hardly bereft of options to accomplish all it might wish to achieve”. This, of course, refers to a Congress that can barely pass a budget even when one party has full control of both houses. The idea that it can lay down all the specifics of how its laws will be implemented by the executive branch is farcical.
As Ian Millhiser notes, Gorsuch is calling “for the courts to become far more active in dismantling laws that delegate power to the executive” and “believes that the courts should have a far more robust power to toss out rules it does not like”. Even more disturbing than Gorsuch’s view is the fact that it clearly represents the opinions of the majority of the Court. Alito was quite clear that he supported Gorsuch’s view, writing “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort”, and that he only joined the majority in this case since, without Kavanaugh’s recused vote, “a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment”.
Millhiser summarizes the dystopia the Court will be presenting us with when the right case arises for the Court to overturn Congress’ delegation powers. “Congress’ power to delegate regulatory authority to agencies is a backbone of American law. Environmental statutes give the Environmental Protection Agency the power to determine which technologies will best achieve Congress’ goal of cleaning the air. Health laws let the Secretary of Health and Human Services determine who is protected from discrimination by their health providers. Labor laws let agency leaders determine who receives overtime pay. There are more examples of this kind of delegation than any lawyer or any government official is aware of. The Republican Supreme Court is about to give itself a veto power of every example of such delegation. In some cases, they may invalidate entire statutory schemes because Congress relied too heavily on delegation”.
Meanwhile, in Washington, the President and his accomplices are treating the Democrats in Congress with contempt and disdain. Hope Hicks, on the advice of a coterie of six lawyers, four of whom were basically representing Trump, refused to answer over 155 questions in her closed door hearing on Wednesday. Some of the questions Hicks refused to answer ranged from where her office was in the White House to whether she testified truthfully to Robert Mueller. As Chairman Nadler pointed out, it was a textbook illustration of the entirely bogus theory of blanket immunity that the White House has adopted as part of a strategy for dragging out court cases until the 2020 election passes and this Congressional session expires.
Felix Sater took a more direct approach, basically not showing up for his hearing at all, explaining that he had slept through his alarm clock, and apparently refusing to provde the documents he had agreed to give the House Intelligence Committee. This “dog ate my homework” excuse shows just how far those in Trump’s orbit will go to defy the legitimate authority of the Democrats in Congress and protect the President. The Committee has now subpoenaed Sater and it remains to be seen whether he will simply defy that subpoena as others have done or try to claim blanket immunity like Hicks.
According to scientists, the central and eastern Himalayan glaciers will be gone by 2035. Between Republicans’ defiance of any legitimate Democratic power and a Supreme Court with expansionist views of its own powers, it seems quite possible that our democracy won’t make it even that long.