The Supreme Court Just Handed A Match To An Arsonist

INSIDE: Keith Ellison ... Kristi Noem ... Mike Waltz

(Photo by MANDEL NGAN/AFP via Getty Images)caption...

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The Biggest News Of The Week

In a tumultuous week that marked four months since Donald Trump’s second inauguration, nothing will have as long-lasting and damaging an effect on American democracy as the Supreme Court’s decision yesterday to upend 90 years of its own precedent and strip independent agencies of their independence.

The high court’s six-justice conservative majority fundamentally altered the structural balance of power among the branches of the federal government. It handed vast new power to the White House to put politics above expertise, partisanship above reason, and power over principle.

All of that would have been bad enough at any other time, but the Roberts Court just handed a match to a confirmed arsonist in Donald Trump. As bad as the first four months of his second term have been, it was not enough to dislodge the conservative justices from their ideological attachment to the radical theory of a unitary executive.

The immediate result of their decision will be to enable and encourage Trump’s rampage across federal government to bring it to heel to his whims in dramatic and disturbing ways. But it also tilts the playing field of American politics in profound but often imperceptible ways that will persist for decades.

One wonders how independent agencies will even function. They were created and have existed over the course of nearly a century under a certain set of assumptions about the importance of experts, consistency in policy-making, and insulation from partisan politics. What is their use or reason for being now if they’re merely appendages of the White House doing its bidding?

The Damage Is Long Term And Lasting

Political scientist Don Moynihan makes an insightful point about the impact of the Supreme Court’s decision:

With unitary executive theory, Congress cannot write robust new legislation that modernizes the civil service and stops politicization. A President could just ignore it. Even if Trump leaves office, and a new President looks to restore nonpartisan competence, their promises are only good for four or eight years before another President can come in and rip up the terms of their employment. And over time, why would even a good government President invest effort in restoring capacity if their successor can undermine it?

With unitary executive theory, the public sector becomes permanently viewed as an unstable and chaotic workplace that we are seeing now. The most capable potential employees decide its not worth the bother, and the workforce becomes a mix of people who cannot get a job elsewhere, and short term political appointees.

SCOTUS’ Special Carveout For The Fed

Last month, Todd Phillips warned of the intellectual dishonesty afoot if the Supreme Court did what it ultimately did do yesterday in overturning its Humphrey’s Executor precedent while carving out a special exception for the Federal Reserve: “In short, there is simply no principled way of ensuring the Fed’s removal protections stand while striking down those of all other agencies.”

Mixed Bag On Stopping The Trump Rampage

• Department of Education: In a new ruling, U.S. District Judge Myong Joun of Massachusetts blocked massive layoffs at the department, concluding that they were a poorly camouflaged attempt by the Trump administration to unlawfully dismantle it.

• Voice of America: The Trump administration’s silencing of the government broadcaster can continue after the full D.C. Circuit Court of Appeals allowed a stay pending appeal to remain in place.

• Gov’t-wide: Judge Susan Illston of San Francisco extended her order blocking mass layoffs across 22 government agencies and reining in Trump administration efforts to dismantle some offices.

Higher Ed Attacks: Ivy League Edition

• Harvard: Harvard quickly filed a new lawsuit against the Trump administration Friday morning challenging the Department of Homeland Security’s revocation yesterday of the school’s certification for admitting foreign students. “This means Harvard can no longer enroll foreign students and existing foreign students must transfer or lose their legal status,” DHS announced (the emphasis is in the original).

• Nationwide: U.S. District Judge Jeffrey White of Oakland issued a preliminary injunction blocking the Trump administration from revoking the legal status of foreign students en masse.

• Columbia: A trumped-up investigation by the Department of Health and Human Services accuses the school of violating civil rights law by “acting with deliberate indifference” toward harassment against Jewish students.

Something Has To Change

As the Trump administration weaponizes the government’s investigative powers to target perceived political foes and people it doesn’t like or agree with, editors and reporters can’t continue to frame coverage of those investigations in the same way they always have. A couple of sample headlines from today:

• NYT: Regulators Are Investigating Whether Media Matters Colluded With Advertisers

• WSJ: Columbia Violated Students’ Civil Rights, Government Investigation Finds

Those framings only lend legitimacy to what is a dramatic departure from the legal and ethical strictures that bound government investigations in the past. Even in better times, journalists were often too deferential in their framing of investigations in ways that mirrored what prosecutors and law enforcement alleged. In the Trump era, the fact of the investigation is often more important than what it purports to investigate or uncover. The old ways of covering government investigation simply can’t persist in these new conditions.

Understanding The FDA’s Shift On COVID Vaccines

Epidemiologist Katelyn Jetelina on the Trump FDA’s decision to erect new hurdles for COVID vaccines for healthy people under the age of 65:

On the surface, this sounds reasonable. After all, severe Covid-19 is far less common in healthy young people. Given growing immunity, real scientific questions exist about whether annual boosters are still warranted for everyone. And, yes, other countries do things differently.

But beneath the surface, this move is deeply troubling. It bypasses the scientific systems built to answer these questions, replacing the public process in health policy with the opinions of two political appointees with chips on their shoulders.

Trump Confirms South Sudan Flight

President Trump confirmed in a social media post that the deportation flight to South Sudan, which has been the focal point of an intense legal battle in federal court in Massachusetts this week, is parked in Djibouti.

BREAKING …

The 5th Circuit Court of Appeals issued an administrative stay in the Alien Enemies Act case out of Houston, where U.S. District Judge Keith Ellison had issued a strongly worded order for the Trump administration to produce before midnight tonight detailed information about a Venezuelan man deported to El Salvador and not heard from since.

A Critical And Deeply Dark Dynamic

A good analysis from Politico of how the Trump White House views losing in court on its lawless anti-immigration actions as still a win politically.

Just Another Normal Day In America

Brilliant

Reuters: “A hacker who breached the communications service used by former Trump national security adviser Mike Waltz earlier this month intercepted messages from a broader swathe of American officials than has previously been reported, according to a Reuters review, potentially raising the stakes of a breach that has already drawn questions about data security in the Trump administration.”

Have A Good Weekend If You Can

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