Understandably, as the Fourth of July fireworks went off this week, most Americans, liberals and conservatives alike, felt ambivalent: as patriotic as ever, but deeply concerned about the direction in which our country is headed.
Yet one part of our republic has proven itself worthy of celebration: the federal judiciary, which once again slowed down the Trump agenda last week, rising to the challenge of defending democracy against the government—and underscoring the threat of Trump’s battalion of extreme-right judicial nominees.
The Trump administration and EPA director Scott Pruitt have put forth an aggressive agenda to undo everything the Obama administration did to protect the environment. The most recent judicial setback for the Trump administration did not get the headlines of the travel ban case (widely reported as a Trump victory, and tweeted as such by the president, but which was actually a clear sign that the ban will not be upheld in the fall) but it was significant nonetheless: the Court of Appeals for the D.C. Circuit, which reviews government regulations and is sometimes called the second most powerful court in the country, slammed the breaks on those rollback efforts.
Although he has a lot of competition, Pruitt is surely the most corrupt, venal member of Trump’s cabinet. Not only did he baldly lie to congress during his confirmation process, what he lied about was the unmistakable proof that, as attorney general of Oklahoma, he was in secret contact with fossil fuel industry representatives, and acted as their parrot (at one point literally cutting and pasting an industry press release on state letterhead) in a series of actions against Obama’s EPA.
Now running the EPA himself, Pruitt has increased—and, perhaps to his credit, made more transparent—his reliance on industry hacks, rather than scientists, to “review” environmental rules. He has suspended, fired, or sidelined actual scientists; ignored their findings when industry counselors have told him so; and, famously, denied the 100 percent consensus of non-industry-paid scientists regarding climate change.
In place of science, Pruitt has turned to industry representatives, such as those from Devon Energy, the natural gas behemoth from his home state which had faced hundreds of thousands of dollars of fines for violating environmental laws, including a new set of regulations designed to monitor and report methane emissions.
That last point—methane regulations—is where Pruitt got into trouble.
The thing is, the D.C. Circuit said last week, you can’t just wave away a published regulation. Regulations don’t appear and disappear by fiat. They require long notice and comment periods. By law, they must be vetted by actual scientists, based on actual science. And if you’re going to repeal a regulation—or “suspend” it for two years, as Pruitt had directed—you’ve got to go through a similar process to the one that established it in the first place.
Now, at the end of the day, those methane regulations are probably doomed. Yes, it will take longer, but the repeal will eventually happen. Nor did the court pass judgment in the core offense of Pruitt’s EPA, which is that it has abandoned its statutory mission to preserve the environment by conditioning such preservation on how much it costs polluters to comply. That is a sea change in how the government balances protecting human lives and enabling corporate profits.
Oh, and in the meantime, don’t expect Pruitt’s EPA to enforce the existing rules—surely they’ll just let Devon Energy slide “for now.”
Nevertheless, the court decision is hugely important. The unbelievable breakneck pace of the Trump administration’s anti-environmental rollbacks just hit a serious speed bump. Moreover, the court went out of its way to note that the “moratorium” was based on nothing: no science, no public process, nothing at all, other than Devon Energy and others saying they wanted the rule to disappear.
And the decision will reverberate. There are dozens of similar actions that Trump’s administration has taken: delaying other methane regulations, delaying FDA regulations regarding the calorie content of foods, delaying labor department requirements that financial advisers put clients’ interests above their own, deregulating the toxic pesticide chlorpyrifos, reversing the “Clean Power Plant” regulations, shelving a rule aimed at closing a loophole that let Devon Energy pay lower royalties on federal land use than they should, withdrawing fracking regulations… the list goes on and on and on.
All of these will now be litigated in court, and with the D.C. Circuit’s decision in place, challenges to them stand a good chance of succeeding. Again, it’s just delaying the inevitable—but that counts for a lot, especially with an election coming in 16 months.
Unless, of course, the Supreme Court grants an appeal—in which case the newly reconstituted conservative majority may well overturn the D.C. Circuit and reinstate Pruitt’s dictates.
As it happens, Justice Gorsuch has published some unusual opinions about deferring to agency decisions, suggesting he may be less deferential than present law requires. On the other hand, given that all the regulations being reversed were, initially, exercises of agency discretion in the first place, Justice Gorsuch may well tip the balance in Pruitt’s favor. We’ll see.
More broadly, though, the important role that the courts have played in slowing Trump’s actions on immigration, security, and environmental regulations points to the importance of the federal judiciary generally—and to the extreme candidates that Trump has nominated so far. Trump has continued to draw heavily from the wishlist prepared by the Heritage Foundation, tacking hard right from the judicial mainstream.
That’s a Republican president’s prerogative of course, but like so much else in the present administration, Trump has gone beyond previously accepted limits, nominating to one appellate court John Bush, a birther who used a pseudonym to blog wingnut-like rants about President Obama, and to another Damien Schiff, who called Justice Anthony Kennedy “a judicial prostitute.” (Schiff has apologized.)
And because of unprecedented obstructionism in the previous congress, Trump now faces a record-high number of vacancies and expected vacancies in the federal judiciary: 38 percent over the next four years.
That’s right: By 2020, over one-third of federal judges will have been chosen by Donald Trump—assuming his presidency goes the distance. That’s compared with one-eighth of the judiciary now comprised of Obama appointees.
And yet, for all that courts matter, for all the size of Trump’s opportunity, and for all the bad faith that made it that way, court picks remain a boutique issue that, according to polling data, voters just don’t care about. Only Christian conservatives pay much attention, and even then, are only interested in putting pro-lifers on the Supreme Court so they can overturn Roe v. Wade.
But voters should care. As we’ve seen in the last six months, the independent judiciary may be democracy’s last line of defense.