Will The Courts Restore Rationality?

Red State reports today about the lawsuit of the State of Florida in federal court challenging CDC "guidelines" for cruise ships. One wishes that such lawsuits had been brought, oh, at least a year ago, but better late than never. The judge hearing the case has Florida in CDC in mediation at this point, Steven Douglas Merryday (a senior GHWB appointee) is showing signs that he will demand that CDC show some rational basis for its outrageous "guidelines"--guidelines that are clearly intended to shut down the cruise ship industry in the State of Florida. CDC is demanding that 95% of cruise ship passengers be vaxxed. According to the Tampa Bay Times,

Does the U.S. Centers for Disease Control and Prevention have the authority to require cruise companies in Florida to take specific measures to prevent the spread of disease? And are its current mandates an unfair burden on the industry?

Those questions were at the heart of a three-and-a-half hour hearing in federal court Thursday in Tampa over the state of Florida’s request that the court invalidate the federal government’s rules for cruises while a lawsuit against the agency proceeds.

It was the second hearing on the request. As with the initial hearing, held on May 12, U.S. Middle District of Florida Judge Steven D. Merryday issued no immediate ruling but said he would have a decision “soon.”

There is growing sentiment on the SCOTUS to rein in the administrative state, which courts have long deferred to as representing "expert" opinion. In addition to long sitting justices, all three Trump appointees are known as critics of what has often amounted to blank check deference. That view seems to come through in the TBT account of the hearing, and of Merryday's questioning of the CDC. Notably, Merryday confronted the CDC with the stats from the Diamond Princess cruise ship.

The question of Chevron deference, the deference accorded to the interpretations of government agencies like the CDC by federal courts, is a complicated one. Here's the Wikipedia first paragraph thumbnail sketch:

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. The decision articulated a doctrine now known as "Chevron deference". The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: "whether the agency's answer is based on a permissible construction [emphasis added] of the statute", so long as Congress has not spoken directly to the precise issue at question.

Note that the deference applies when Congress has passed a statute that the agency in question (here the CDC) is interpreting, as a presumed expert in the subject matter. This is why the CDC lawyer references the "broad authority" that it has "from Congress". But the judge shows a will to push for a rational basis for the guidelines independent of CDC's claims of "broad authority." The CDC lawyer slips up, in my opinion, by claiming an essentially unlimited authority--an authority that courts are unwilling to grant even to Congress. Additionally, courts are unlikely to accord a high degree of deference when the guidelines were not arrived at as a result of public hearings. Conservative legal groups have long been urging federal courts to review the Chevron doctrine of deference (it has been narrowed over time) and even to throw it out entirely--subjecting agency rules to "strict" scrutiny for a rational basis. That momentum, with the addition of Trump's three appointees, is at the highest point yet.

Here is the TBT account of the core of the hearing, but there's more at the link:

The underlying lawsuit, filed against the Centers for Disease Control by Gov. Ron DeSantis in April, says the agency’s “conditional sail order” is unfairly targeting the cruise industry with overly burdensome safety rules, and preventing Florida from collecting important tax revenue. The current request calls for immediate action until the lawsuit can be heard.

In reviewing the issues Thursday, Merryday asked, “What is the acceptable risk for traveling on a cruise vessel and who decides to take that risk or if it’s too much?” He noted that a passenger who contracts the coronavirus aboard a cruise ship has made “a private decision with a public consequence.”

He also grilled the federal government’s lawyer about the source of their powers to regulate cruises and repeatedly asked for the agency to define how bad the coronavirus spread needs to be onboard a ship before the agency can intervene.

...

But Amy Powell, who represented the Centers for Disease Control, said cruises are much more dangerous than other settings.

“Several thousand people are in close quarters for days and weeks,” she said. “We have data showing the transmission rate aboard cruise ships is five times higher than elsewhere.”

The judge’s questions hinted at skepticism. The federal government has used past cruise outbreaks, such as on the Diamond Princess, to help craft the rules and understand how the virus spreads on board. Of the thousands of passengers on that ship, at least nine died, according to previous agency statements, though Powell said the true number was higher.

“On a vessel without precautions designed for COVID, without knowledge of COVID and without therapeutics ... two-tenths of one percent of passengers died?” Merryday asked.

He also said the Centers for Disease Control’s own research suggested masks’ effect on tamping down the spread was “barely statistically significant” in one community where the agency had done a study.

“Where does this mask efficacy theory come from?” Merryday said. “We’ve had masking and social distancing for a long time and we had a pandemic in the middle of it.”

Powell responded that neither masks nor social distancing are cure-alls, but that they reduced the number of people who died.

“What you can do is make the best scientific decision you can with the evidence available. That’s the CDC’s job,” she said. “We don’t expect the risk to be zero, there will be risk on every ship. ... But we’re still in the midst of a still-deadly pandemic.”

When pressed on what level of transmission would require agency action, Powell said the agency has broad authority from Congress to prevent the interstate and international transmission of disease, and there’s a need for “enforceable public health measures.” Legally, the agency has the power to try to reduce transmission to zero, even if that may not be practical in the coronavirus’ immediate future, she said.

Percival, for the state of Florida, pounced on that statement.

If that’s true, “it’s unclear what they cannot do,” he said. “They can bar your doors. ... That is an astronomical power.”

Percival, representing Florida, makes a hugely telling point, in my view. CDC unwisely asserted an essentially unlimited power that any court should be skeptical of. Hopefully this case--which, with all the economic and social implications involved--will serve as the vehicle to restoring rational control of the federal administrative state.

Two Important Reads Re The Administrative State

"Administrative State" is the term that political scientists use to describe the bureaucratized government that we have, in which the unelected permanent bureaucracy--lodged in the Executive Branch--increasingly takes over the functions of the Legislative Branch, which in the constitutional scheme of things was supposed to represent We The People. The result of the empowerment of supposed "experts" in the permanent bureaucracy is that neither Congress nor even presidents or cabinets secretaries are able to exercise true authority over the government. Never, perhaps, in the last hundred and more odd years of the Administrative State's development in America has the full power of the Administrative State--in opposition to all three constitutional branches of government--been more apparent than during the four years of the Trump administration.

The two scholars most associated with the critique of the Administrative State are John Marini, a political science professor, and Philip Hamburger, a law professor.

Marini's best known book on the subject is Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century. Writing from a more strictly legal standpoint, Hamburger's major work is Is Administrative Law Unlawful?

However, if you're short of time, I'm linking two articles--actually, an interview with Marini and a review of his book--that will give you a very clear idea of what's at stake in all this.

The review of Marini's book can be found here:

Have the American People Irrevocably Ceded Control of Their Government to the Modern Administrative State?

I'll only excerpt a few paragraphs from the review. I chose these paragraphs because they discuss what I've regularly referenced--the influence of Hegelian philosophy over the American Progressive Movement, which includes (among names most will recognize) John Dewey and Woodrow Wilson:

The American Republic's Crisis Of Authority And Legitimacy

Just yesterday in Who Would Rule A Post-Constitutional America? I raised the issue of rule in a post-constitutional America--an America ruled by a regime lacking authority and legitimacy. It may be well to expand on that a bit, and today at American Greatness I found two articles that may help.

First, however, I'll try to be more explicit about what I mean by the terms 'authority' and 'legitimacy'. Authority derives from the degree that a regime reflects the truth of human nature. Legitimacy refers to the degree that a regime reflects the views of the population it purports to represent. A bit of reflection will suggest that a given regime may be legitimate, yet lack authority--and vice versa, unfortunately. In an imperfect world, authority and legitimacy will normally be imperfect, as well. However, I take it as given that the regime established by our written Constitution had sufficient authority and legitimacy to command the consent of the population. The imperfections inherent in the American Founding, of course, have contributed to the recurrent crises of our constitutional order, as is the case with all regimes.

The current crisis is twofold. The crisis in authority is occasioned by the fact that our ruling class rejects--whether implicitly or explicitly--even the concept of human nature itself, let alone the idea of a truth of human nature. This revolutionary attitude of our ruling establishment was memorably lampooned by Justice Scalia in referring to the Libertarian views of Anthony Kennedy as (here quoting from Scalia's dissent in Lawrence):

The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ("'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

As Scalia suggests, a constitutional 'jurisprudence' that purports to leave to each individual the privilege--or burden--or defining "one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" is no jurisprudence at all. It is, as he notes, a jurisprudence that has eaten the rule of law. A regime whose civic philosophy is expressed in such a parody of a jurisprudence lacks authority. And that's where we are as a nation.

The legitimacy of our constitutional republic is fundamentally defined and grounded in the concept of free and fair elections. Thus, the Constitution itself contains a "Guarantee Clause":

Draining The Swamp

This morning Scott Johnson at Powerline linked to a review of Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century, by John Marini. The review is by Michael Anton, Draining the Swamp:

Michael Anton (born 1970) is an American former senior national security official in the Trump administration. He is best known for his pseudonymous essays written during the 2016 presidential campaign in which he supported Donald Trump and collaborated on the pro-Trump Journal of American Greatness blog. Anton was named Deputy Assistant to the President for Strategic Communications on the United States National Security Council. [Read More]

It's a long review, and one that may begin a bit slowly for those who aren't up on political philosophy, but it's hard to praise it enough for the insights into, well, The Crisis of American Politics in the Twenty-First Century. In other words, the big picture of what the Russia Hoax is really all about and how it relates to American history--and America's future. I highly recommend Anton's review for its portrayal of the Russia Hoax and the monumental effort by the Deep State to reject Trump like an invasive foreign body. In particular, his application of Marini's thinking to a comparison between Nixon/Watergate and Trump/Russia Hoax is fascinating. Do yourself a favor and read the whole thing. Here are some snippets: