A different swamp
ROGER FITCH ESQ • THURSDAY, OCTOBER 26, 2017
The creepy march of "religious freedom" ... Sidelining anti-discrimination laws in the name of God ... Winding-back clean power and clean water protections ... Employee rights and voter entitlements under threat ... The Supreme Court is back in town ... Trump stock-take from Our Man in Washington, Roger Fitch
IN the 2014 case of Burwell v Hobby Lobby Stores, the US supreme court invented an astonishing new corporate freedom of religion, initially limited to closely-held corporations whose owners asserted religious scruples against particular government policies, e.g. the Affordable Care Act's requirement that contraception be included in health insurance policies.
This first amendment "religious freedom" for godless legal entities was news to those who had always assumed corporations possessed only the rights and powers assigned them by their charters or legislation.
Pushing this extraordinary notion of corporate religious liberty ever further, the Trump administration has now proposed that all corporations of any size or composition have "freedom" to e.g. drop federally-mandated contraception coverage from employee health insurance plans.
A policy of pandering to intolerance and chilling anti-discrimination law is now disingenuously wrapped in religion. Attorney General Jeff Sessions is busy re-framing the first amendment's freedom of religion to include "moral" scruples, to be extended to corporations; apparently, these claimed religious/moral objections may then be foisted upon suppliers, customers and employees.
Corporations asserting "religious freedom" to resist compliance with anti-discrimination and EEO law? It would seem to impose subjective religious beliefs on secular society, and be a triumph of church over state, but Trump's proposed executive order on religion doesn't go far enough for the National Review. More here.
Treasury may also play a role; Trump is attempting to rescind the Johnson Amendment, legislation prohibiting IRS tax exemptions for religious organisations actively participating in partisan politics.
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"He's a f**king moron" - Secretary of State Rex Tillerson.
"Not only is that an insult, he gave away Trump's secret service codename" - Stephen Colbert.
It's been nine months, and a dangerously unstable demagogue, the inexpressibly rude and insulting simpleton Donald Trump, is still president of the US.
Merciless attacks in the media and by some in his own party have not yet yielded his urgent removal through impeachment, criminal proceedings or (on psychiatric grounds) the 25th amendment.
Bannon: deconstructionistEven so, the usurpateur's use-by date may be nigh: Republicans could remove him once he signs their proposed "tax reforms" for tax-dodging corporations, lightly-touched estates and sundry other needy rich.
At nine months, it's time for a Trump stock-take. What has the putative president achieved from his oft-incoherent agenda to (as his former aide Steve Bannon put it) "deconstruct the administrative state"?
So far, Mr Trump's sole organising principle - aside from attention-seeking and the personal enrichment of family and friends - seems to be the undoing of everything associated with Barack Obama.
On the immigration battlefield, Trump's latest Muslim ban could be more likely to succeed, after the judicious addition of a few Christians (e.g. the pointlessly-persecuted Venezuelans) and the placement of a reliable rightwing Republican, Neil Gorsuch, on the supreme court.
At the Environmental Protection Agency, Administrator Scott Pruitt is on course to abolish Obama's Clean Power Plan and Clean Water Rule. Pruitt wants to wind back wind and solar power as well: they compete dreadfully with his first allegiance, the fossil fuel industry.
There's also grave chemical industry mischief underway, centred around EPA's scientific personnel.
Energy Secretary Rick Perry meanwhile wants the Federal Energy Regulatory Commission to subsidise coal and nuclear plants, and the Interior Department has a secret plan to auction off America's vast public lands for oil and gas development.
A Simon & Garfunkel parody says it all.
At the Education Department, Betsy DeVos is in full flight. Perhaps no other cabinet secretary has had more success with a personal agenda.
Treasury has done its part by meddling in worthy regulations of other agencies, e.g. the Consumer Financial Protection Bureau's limitation on compulsory arbitration (now repealed by the Senate).
Mr Trump's awful Secretary of Health and Human Services, Tom Price, has resigned in a travel-expense scandal. He's just the tip of a travel corruption iceberg; Dr Price also figures in a congressional insider trading scandal involving the Australian biotech Innate Immunotherapeutics.
The Republican drive to destroy health insurance and underfund medical care may yet succeed, despite the president's cognitive dissonance. In the meantime, the Trump administration continues to undermine Obama's health insurance scheme, a dozen different ways.
Even the subsidies that are the backbone of the legislation are to be cruelly and foolishly eliminated by Trump's new executive order, more here. Eighteen states have sued to have the presidential order overturned, but law professor and gadfly Jonathan Turley reckons the order is valid and a good thing, constitutionally-speaking.
With health insurance on life support, attention is turning to employment law, where the Republican revolution will be easier: the supreme court is back in town, and workers are on the menu.
Thanks to last year's Republican obstruction of Obama's nominee, and the packing of the court this year with the party loyalist Neil Gorsuch (who, early reports suggest, doesn't play well with others), it seems likely that the most profound changes to workers rights since the New Deal will be proclaimed judicially, along party lines, by a five-four majority of unelected justices.
The Justice Department under Attorney General Jeff Sessions is leading the charge to turn back the clock on workers' rights, filing briefs in support of corporations and against workers in employment litigation.
The DoJ is opposing the government's own National Labor Relations Board in the important 2nd circuit case Zarda v Altitude Express, where the Trump DoJ has reversed Obama policy, and supports the right of employers to discriminate against LGBTIemployees, more here.
In rescinding an Obama reading of Title VII (Civil Rights Act 1964) that protected transgender workers from discrimination, the DoJ is also acting contrary to another federal agency: the Equal Employment Opportunity Commission is currently prosecuting a company for just such discrimination.
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Jackson: fallibilityThe Attorney General is also actively undermining voting rights, aiding and abetting the depredations on voting rights implemented in "red" states since the supreme court's deeply-flawed Shelby County v Holder(2013) - the case that struck out a key enforcement section of the Voting Rights Act 1965.
Interestingly, the majority's reliance on mistaken data in Shelby County was recently cited as part of a supreme court problem in a Pro Publica report.
Maybe the justices need technical advisers to guard against alternate facts and fake news. And help with innumeracy: an aversion to maths could complicate consensus in the pending partisan gerrymandering case, Gill v Whitford. More here.
As Justice Robert Jackson famously wrote - "We are not final because we are infallible but we are infallible only because we are final."
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