#ed meese

[mudwerks]

(via WHEN THE LAUGHTER STOPS - Pulp International)

[justinspoliticalcorner]

The Right-Wing Justices Know Their Favorite Legal Theory Is Bunk

Now that the Supreme Court’s conservative bloc is putting the unitary executive theory to the test, its cracks are beginning to show—and its

Simon Lazarus at TNR:

The media’s takeaways from the December oral arguments in the Trump Justice Department’s bid to the Supreme Court to invalidate multimember “independent agencies” were unanimous: They were a big win for Trump and for legal conservatives’ decades-long drive to free presidents from congressionally imposed checks on presidential control over executive agencies and personnel. The widely anticipated result would render two dozen commissions and boards that have wielded political authority for decades unconstitutional at a stroke. To provide a modicum of insulation from political interference, these bodies’ governing statutes prescribe that the president may only remove commissioners or board members for “cause”—usually defined as “inefficiency, neglect of duty, or malfeasance in office.” Such limitations on presidential removal authority run counter to the “unitary executive theory” treasured by the conservative legal movement. On all sides, pundits heard all six conservative justices signaling that they would likely apply that theory to uphold Trump’s unexplained dismissal of Federal Trade Commissioner Rebecca Slaughter, eliminating for-cause removal safeguards and with it, multimember agency independence.

This consensus take is accurate as far as it goes. But beneath the conservative justices’ convergence around that bottom line, the lengthy session exposed reservations, confusion, and differences across the conservative bloc, potentially heralding divergence, uncertainty, proliferating lawsuits, and regulatory gridlock in years ahead—perhaps even this term. The right-wing justices’ emergent disarray seemed to reflect their awareness of pitfalls lurking in and around their hitherto unquestioned unitary executive gospel—including logical, legal, and most of all, real-world consequences that menace the economy, the nation, and the court itself. With these threats suddenly hoving into view, the conservative justices were flailing to figure out credible strategies to head it off.

Obviously, the gritted-teeth dogmatism of the conservative justices is the engine that has driven this kooky theory forward, despite its evident lack of grounding in constitutional text and history. But liberals also deserve blame. They have stood by while conservative presidential absolutists have framed the debate with labels, shibboleths, and catchphrases that, while misleading or outright false, have tilted the playing field rightward. Since first hoisted by President Ronald Reagan’s second-term Attorney General Edwin Meese, the unitary executive banner has flown as an originalist imperative, catchily articulated by wordsmith-in-chief Justice Antonin Scalia. Quoting the so-called vesting clause of Article 2 of the Constitution—“The executive Power shall be vested in a President of the United States”—Scalia spun that text to “not mean some of the executive power, but all of the executive power.” Scalia’s chestnut bred an asserted (though not demonstrated) corollary: that to effectively deploy this sweeping authority, presidents must hold an indefeasible power to remove senior executive officials, certainly agency heads, at will, for any reason or no reason.

But in the oral argument testing this claim, the conservative justices seemed to reckon with the fact that recent scholarship had obliterated unitary executive theorists’ claims to an originalist birthright. Here, hammer blows had been struck by both eminent conservative as well as liberal-leaning academics. In the courtroom, the justices’ grudging recognition came across in a variety of ways. Justice Amy Coney Barrett, perhaps because she repeatedly vaunts her originalist fidelity, tried two countertactics, neither of which seemed to resonate with her conservative colleagues. First, she attempted to trivialize the real-world importance of the several agencies enacted in the 1790s with leadership structures recently shown to lack untrammeled presidential removal authority. Even if this was factually accurate, her contention would have little or no legal probative weight. But Barrett was, indeed, demonstrably wrong on the facts.

[...] In practical fact, are presidents disabled from performing that good-faith oversight role if they are authorized to fire agency heads for “inefficiency, neglect of duty, or malfeasance”? On the contrary, such a mandate could more plausibly be understood to affirmatively ensure that a president could use removal authority to further fidelity to law by agency heads—as distinguished from pushing his own political agenda, which is expressly what this administration argues should be a president’s prerogative. Moreover, Barrett’s (correct) assertion that more than one constitutional provision pertains to presidential removal authority underscores that the vesting clause cannot be read in isolation but must be contextually interpreted in the light of all such relevant constitutional provisions. (The lifting of discrete words or phrases out of context is a common maneuver by conservatives to twist the meaning of legal texts.) Such other provisions would, necessarily, include Article 1’s foundational grant of power to Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers [specifically assigned to Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Emphasis mine.) Here lies the textualist/originalist case for absolutist unitary executive theory; rest in peace.

[...] Very unfortunately, despite the empty legal grounding and practical horrors of unitary executive theory, liberal advocates have allowed proponents like Kavanaugh to frame and dominate the public narrative. Their errors and omissions are why liberals have often come up short in the half-century-old war over the courts and the Constitution. To begin with, liberals have not challenged labels that their conservative adversaries have crafted to frame the debate their way. “Unitary executive theory,” for example, is a mind-numbing, impenetrable abstraction calculated to induce 99 percent of the populace to tune out of the debate altogether. This of course is precisely the impact UET theorists seek.

Liberals should be opening ordinary people’s eyes to the real-world consequences for them of gutting autonomy for, say, the FCC, with its power to grant, deny, condition, or withdraw broadcast licenses, or the FTC, with its power to scotch power-concentrating mergers, rooting out deceptive and abusive marketing schemes, and engineering restitution to victimized consumers. To do that liberal advocates could begin by replacing the soporific “unitary executive theory” label with one more sharp-edged—perhaps “presidential absolutists” or “politicizers” or “corruption coddlers.” They need to constantly highlight concrete examples of abuses, threatened and actual, and of corruption that could or has already caused attention-getting damage, and spotlight the beneficiaries of agency programs and actions. They could be saying that absolutists are out to “Make America Corrupt Again” or “bring back the swamp.” This should and could be a debate liberals will enjoy having; one that conservatives shall run from.

Too often, liberals counter unitary executive theory with a defense of the need for “impartial experts,“ lauding agency missions in hopelessly abstract terms, such as health or competition or fairness. To be sure, highlighting expertise or critical agency missions is valid and necessary. But taken alone, such frames can reinforce the right’s portrayal of regulatory and other officials as denizens of a remote “administrative state,” distant and undemocratic, performing esoteric duties that don’t speak to the real-world benefits being provided.

The “unitary executive theory” pushed by radical right-wing SCOTUS justices is yielding disastrous dividends.

[politicalrpf]

Anti-Ed Meese posters, 1988.

[oldshowbiz]

1982.

White House policy adviser Ed Meese wanted to provide tax exemptions for any school that practiced racial segregation.

[politicaldilfs]

Ronald Reagan, Walter Cronkite, Jim Brady (partially obscured), David Gergen, Ed Meese, George H.W. Bush, James Baker, and Bud Benjamin. 

Yes, this is from the “And then we told them…” meme, where Reagan and his cronies are laughing about all the ways they irrevocably fucked the country over for the benefit of the wealthy. The photo itself was taken on the day of Cronkite’s interview with Reagan, the final one he did with a sitting president. Another fun fact: I’d let all of them do me one by one.

[oldshowbiz]

Frank Zappa despised Ed Meese. Modern day Libertarians associated with the Federalist Society worship him, despite his long anti-freedom record.

Ed Meese helped suppress the Free Speech Movement at Berkeley in the 1960s, released a massive plan to suppress pornography in the 1980s, and was an outspoken adversary of Miranda Rights.

He was one of the government's most aggressive pro-censorship cops and frequently shared his neo-confederate beliefs at the Heritage Foundation - a think tank he helped guide as one of its board of directors.

He is also the man who came up with the "originalist" philosophy that informs the Federalist Society, an organization that he helped found.

[oldshowbiz]

The reactionary Ed Meese popularized the concept of "originalism."

The "originalist" philosophy argues that things like civil rights, abortion rights, and workers rights are unconstitutional because they aren't explicitly mentioned in the constitution - and, therefore, not the "original intention" of the Founding Fathers.

Meese advocated for the overturn of civil rights laws and the blatant contradiction of established supreme court precedent.

While his philosophy was dismissed as extremist nonsense in the early 1980s, it has gained traction in recent history as more and more members of the extremist Federalist Society (of which Meese was a founding member) have acquired power.

[oldshowbiz]

While working for the Reagan administration, the political degenerate Ed Meese sought to remove civil rights protections. Meese served on the board of several extremist groups including the Heritage Foundation and the Federalist Society.