Howling at the Moon

The Administrative State has a Temper Tantrum

Frustrated, threatened, and indignant, my how the dogs of the Administrative State do howl.

Cries of “Pack the court, now! Toss the Constitution!” echo through the laptops and concrete canyons of the land of the woke, the home of the craven. From sea to shining sea.

“Ditch the Constitution and Start Over!” “How to Discipline a Rogue Supreme Court”. “Can Democrats Expand the Supreme Court and How Likely Is it?”. “Congressional climate hawks demand action after ‘alarming’ Supreme Court decision.” “Hate the Supreme Court? Our problems actually start with the Constitution”. “POWER, NOT REASON”: THE FALL OF ROE AND THE RISE OF REPUBLICAN ORTHODOXY AT THE SUPREME COURT. The conservative majority of the court did away with a half century of American law simply because they can—and regardless of the will of the majority of Americans.”

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What’s going on here?

There are many possible hypotheses for why suddenly it has become acceptable in media and congress to advocate for jettisoning the US Constitution or packing the Supreme court because of a ruling that they find disagreeable. In the current climate of wokeness and hypersensitivity about voicing anything that might offend another, one would think that advocating for treason against the foundation of the United States government would be worthy of censorship, gaslighting, derision, and defamation. If there was ever anything which was considered spreading mal-information of sufficient threat to justify the term “domestic terrorism”, it would be threatening the Supreme Court (and justices, and their wives), the US Senate and the Constitution. That would certainly seem to be a greater threat to the nation than discussing the merits of early treatment of COVID-19, or raising concerns about the safety of a novel genetic vaccine technology. But note the one branch of government not subject to criticism, the executive branch; creature of the entrenched Administrative State, captive to the Senior Executive Service. Move on, nothing to see here.

It is important to remember that current debates and decisions from the Supreme Court could (and I sincerely hope will) contribute some constitutionally informed limits on the power, discretion, and independence of unelected administrators- limits on the Administrative State and the power of the Senior Executive Service, which unelected body is really what controls the levers of the United States Government. Together, recent and pending Supreme Court decisions might help reconstruct a constitutional state which is more closely aligned with the original intent and vision of the founders.

Very few appreciate that these were the real issues underlying recent decisions concerning who to appoint to the Supreme Court. Trump’s first two appointments to the high court—Neil Gorsuch and Brett Kavanaugh—were two of the nation’s leading judicial minds on administrative law, and White House Counsel Don McGahn made clear that this was no coincidence. So too with Trump’s appointments to the lower courts, which included administrative-law experts such as the D.C. Circuit’s Neomi Rao and Greg Katsas, and the Fifth Circuit’s Andrew Oldham.

“The lowest form of popular culture - lack of information, misinformation, disinformation, and a contempt for the truth or the reality of most people's lives - has overrun real journalism. Today, ordinary Americans are being stuffed with garbage.”

Carl Bernstein

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Before settling in for the evening, Jill had alerted me to recent hyperventilation in the press regarding the Supreme Court, including calls for jettisoning the US Constitution. I woke up in the middle of the night with the burning question of what can possibly explain this behavior.

Having come to realize that the corporate press has become the voice of the Federal Administrative State, and are behaving like a pack of dogs (nothing new there), I first turned to the American Kennel Club (AKC) for some insights, searching (using the Brave browser, of course) for the key words “Why do Dogs Howl” and came up with this gem: “Howl at the Moon: Reasons Why Your Dog Howls”, which is full of pearls of wisdom for both canine enthusiasts and students of current trends in US Politics.

“The sound of a dog howling can seem mysterious, eerie and mournful.”

Well, yes, these vocalizations from the corporate press certainly seem mysterious, eerie, and mournful. Check.

“Howling is a sustained noise that carries a long way so it’s the perfect way for dogs to communicate over long distances with other dogs. Hence the image of a lone wolf on a hill, howling against the backdrop of a full moon. In the wild, it’s usually a night time activity. Maybe dogs feel lonely then and are trying to communicate to other dogs.”

Once again, seems applicable. Let’s give them the benefit of the doubt, a bit of unearned empathy, and imagine the corporate press shilling for the Administrative State as lonely dogs, and trying to communicate with other dogs over long distances.

“If a dog has a habit of howling constantly while her owner is away, it might be a sign of separation anxiety.”

Well, now we are really getting somewhere. Separation Anxiety. Is the Administrative State experiencing separation anxiety? Separation from what?

“When howling sounds distressed and there isn’t an obvious trigger, the dog might be in pain.”

Aha! Now that has the ring of truth. Cognitive dissonance is one of the greatest sources of mental pain and anguish. I think we may be getting somewhere. Maybe the lapdogs of the Administrative State are experiencing subconscious pain and anguish. Being of the scientific bent, I turned to Scientific American for further insight:

“Cognitive dissonance is that uncomfortable feeling you get when you try to maintain two or more inconsistent beliefs at the same time or when you believe one thing but act in a contradictory way.”

So let’s take a look at the source of the collective angst of the corporate press for a moment.

LA Times, Nicholas Goldberg: Hate the Supreme Court? Our problems actually start with the Constitution

“So you’re unhappy with the Supreme Court justices who turned back the clock on environmental protection, abortion, school prayer and guns? You’re angry because they’re ideologues with a reactionary agenda, flexing their muscles to eliminate rights, weaken government and endanger the planet?

Me too. They’re reprehensible.

But let’s be honest: The problem isn’t just with the justices. The problem, or at least a substantial portion of it, lies with the U.S. Constitution itself.

Yes, the hallowed Constitution, the document hammered out in 1787 by 55 bewigged men in Philadelphia. Our revered charter that lays out the foundational rules and principles at the heart of the American experiment: freedom of speech and religion, the separation of powers, federalism, bicameralism and all the other checks, balances, rights, promises and innovations that make this nation what it is.

These days the Constitution is showing its age.

“It was written by a small group of white male landowners clustered along the Eastern Seaboard in a largely agrarian society in the late 1700s,” said David S. Law, a professor at the University of Virginia School of Law who studies courts and constitutions around the world. “How could it possibly fit the needs of a highly diverse country of 300-plus-million people in the 21st century, a military and economic superpower in a globalized world, a highly developed, post-industrial nation that stretches from sea to shining sea?””

I think that gets to the heart of the point here.

To his great credit, Mr. Goldberg pulls back from going full la la land cray-cray. Quoting from his closing arguments:

“Now I don’t mean to suggest that the Constitution needs to be replaced or even drastically rewritten. It has many strengths, and there are advantages to a battle-tested system. Besides, we don’t want it to overpromise; some countries (North Korea, for example) guarantee rights they then fail to protect.

Furthermore, opening up the Constitution to dramatic revision could also lead to undesirable changes. A constitutional convention, currently supported by many on the Republican right, would come with grave risks.”

Now THAT is an example of cognitive dissonance in action. Looks like we might be onto something here.

But then we have New York Times Opinion Columnist Jamelle Bouie.

“How to Discipline a Rogue Supreme Court”

“The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked, and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health Organization, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

In the face of a reckless, reactionary and power-hungry court, Congress has options. The problem is politics. Despite the arrogance of the current Supreme Court — despite its almost total lack of democratic legitimacy — there is little to no appetite within the Democratic Party for a fight over the nature of the court and its place in our constitutional system.”

He concludes:

“It will take time to build the kind of power and consensus needed to make significant changes to the court. But even the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.

The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.”

And that is just howling at the moon. Because of this simple but rather inconvenient truth, as summarized by Newsweek’s coverage of a recent poll sponsored by the official news broadcast station of the Administrative State.

Expanding Supreme Court Opposed by Americans, Even After Roe Decision: Poll

“Many progressive Democrats, including Representatives Alexandria Ocasio-Cortez, Pramila Jayapal, Mondaire Jones, Ayanna Pressley, and Ilhan Omar, Senators Ed Markey and Elizabeth Warren, and New York City Mayor Eric Adams have called for an expansion of the Supreme Court.

But according to an NPR/PBS NewsHour/Marist poll, 54 percent of respondents do not want to expand the court despite the unpopular ruling issued by the Supreme Court last Friday. Thirty-four percent of respondents said they approved of the court's expansion.”

But there are deeper forces at play here. Let’s check in with the land of the Woke. “Counter Punch” is Based in Petrolia, Humbolt County, California.

Ditch the Constitution and Start Over: When a Government Becomes Destructive of the Rights of the People

BYPATRICK MAZZA

“This follows a succession of recent rulings going against popular will, limiting women’s reproductive rights and the powers of states to regulate guns. Another new ruling undermines native sovereignty by placing reservations under the authority of states. Earlier decisions opened the floodgate of unlimited political donations by corporations and the wealthy, and gutted voting rights protection for Blacks and others. The prospect of a radical right Supreme Court composed of judges with lifetime appointments making such decisions for decades to come, holding back possibilities for progressive change, sends a very clear message.

The logic is absolutely compelling. It’s time not only to ditch the court as we have known it, but also the 238-year-old document that shapes what is now one of the oldest governing structures on Earth, and replace it with a system that ensures genuine rule of the people, by the people and for the people. It is time to abolish the Constitution and re-constitute what we have known as the United States in a new political form.”

Well, if that does not meet the criteria for mal-information so kindly developed and deployed by our Department of Homeland Security, I do not know what does.

Not content merely with calling for abolition of the constitution, Mr. Mazza proceeds with a full throated manifesto of wokeness.

“The rollback of rights and environmental protections by a radical Supreme Court has aspects of a crystallizing event. The Dred Scott decision which denied Black people citizenship rights and increased slaveholder power across the Union led to the Civil War. The latest decisions on guns, reproductive rights and climate could collectively represent the new Dred Scott. Particularly if elections in 2022 and 2024 consolidate rightist rule of all three federal branches, and legislation is passed that imposes such measures as a national abortion ban on blue states. That would be the equivalent of the Fugitive Slave Act, another Civil War trigger which criminalized Northerners who refused to help return escaped slaves to their owners. Before the South seceded, many abolitionists were advocating for a Northern secession. A national crisis building for most of the past two decades seems to be at flood stage, ready to overflow the banks.”

Then he calls for dissolving the Union.

“The urge to say goodbye

Many ask whether there should even be a United States at all. They call out the nation’s imperial history, conquering a continent, sweeping aside the indigenous, building wealth on the backs of Black slaves, and then extending what is in fact an empire around the world. Is democracy even possible in a continent-sized nation with nearly 350 million people, or will it inevitably be an autocracy controlled by gigantic, unaccountable institutions whatever the democratic trappings? An oligarchy with democratic characteristics? Is such a nation even reformable, or is some form of radical deconstruction required?

Those are fair questions, and they have spurred movements in places ranging from Cascadia and California to New England seeking some form of independence. The announcement of the Roe v. Wade reversal has produced a social media explosion of calls for Cascadia and California to go their own ways.”

And finally, we get to the core of the matter.

“De facto national break-up

In practical effect, what we are more likely to see than a formal dissolution of the U.S. is a de facto breakup where states set their own course, and cluster in blocks with other likeminded states. In that line was the announcement by West Coast states following the Roe reversal that they would cooperate to protect abortion rights and help women from other parts of the U.S. when they come to the coast seeking abortions.

Following the climate decision, the co-chairs of the U.S. Climate Alliance, 24 states committed to climate action, joined in a statement. Said Governors Kathy Hochul of New York, Jay Inslee of Washington and Gavin Newsom of California, “This ruling makes clear that the actions of governors and state legislatures are more important than ever before. Thankfully, state authority to curb greenhouse gas emissions has not changed. Today, we reaffirm our commitment to decarbonizing the power sector using our authority at the state level.”

A Supreme Court with members committed to radical states’ rights doctrines, as well as measures to hobble federal regulatory agency powers, might also promote de facto breakup by kneecapping federal authority. On the other hand, if conservatives in control of all three branches attempt to impose national legislation that overrides state powers in areas such as abortion, states might outright choose to nullify federal law and refuse to enforce it. A number of states including Missouri and Kansas have already passed “Second Amendment Protection Acts,” claiming the right to nullify federal gun laws, though they have not fared well in federal courts. States such as California have refused to cooperate with federal immigration authorities, and courts have found they cannot be compelled to do so.”

A Supreme Court with members committed to states’ rights doctrines, willing and able to implement measures to hobble federal regulatory agency powers, just might be able to succeed in kneecapping federal authority and bringing the hounds of the Administrative State back under control. Maybe. It we are lucky.

Yes, congratulations Mr. Mazza, you win the prize. That is the true objective. The corporate press may bay at the moon, howling about this or that decision, but what is really going on here is leashing the out-of-control, unelected Administrative State, and bringing it to heel. And forcing Congress to do its job, and to stop delegating responsibility for setting policy to an unelected bureaucracy that has morphed into a corporatist inverted totalitarian state Mastiff.

I suggest that the separation anxiety, the underlying cognitive dissonance causing the press to howl and the administrative state to squirm, is precisely that. Separating an unelected bureaucracy from its sense of entitlement. Spoiled and entitled, the Administrative State is having a temper tantrum, and the corporate press is giving voice to its anguished cries.

Woof.