May 18, 2022
Finland and Sweden have applied for membership in the North Atlantic Treaty Organization (NATO), a defensive alliance originally formed in 1949 to resist the expansion of the Soviet Union and now standing against Russian expansion under president Vladimir Putin. Now the 30 member nations will consider the applications. They are expected to go through, although Turkish president Recep Tayyip Erdogan has said he does not view their applications positively, likely to gain concessions from the United States in ongoing negotiations. The timeline to membership will be shortened since the countries are at risk from Putin’s current policies.
National Security Advisor Jake Sullivan warned Russia that U.S. and European allies “will not tolerate any aggression against Finland or Sweden” while NATO applications are under consideration.
As the Russian invasion of Ukraine nears its twelfth week, the United States today reopened our embassy in Kyiv, and tonight, the Senate unanimously confirmed Bridget A. Brink as U.S. ambassador to Ukraine. We have not had an official ambassador in Ukraine since Trump abruptly recalled Marie Yovanovich in 2019. Yovanovich was standing in the way of Trump’s attempt to pressure President Volodymyr Zelensky to announce an investigation into Joe Biden’s son Hunter before he would release the congressionally appropriated funds Ukraine badly needed to fight off Russia.
To address the baby formula shortage caused by the closing of Abbott Nutrition’s plant in Sturgis, MIchigan, and exacerbated by tariffs that keep foreign baby formula out of the U.S., President Joe Biden today invoked the Defense Production Act to prioritize the manufacture of formula, and is flying formula in from other countries.
This evening, the House of Representatives voted on a proposal to appropriate $28 million in emergency funds to address the baby formula shortage. Two Democrats did not vote, 219 Democrats voted yes. Twelve Republicans voted yes and 6 did not vote. The rest, 192 Republicans, opposed the bill. It now goes on to the Senate.
The House also voted today on the Domestic Terrorism Prevention Act of 2022, which steps up the sharing of information about domestic terrorism among government departments and creates an interagency task force to analyze and combat white supremacist and neo-Nazi infiltration of the uniformed services and federal law enforcement agencies. The House passed the bill by a vote of 222 to 203. All the no votes came from Republicans; all the Democrats voted in favor. It now goes on to the Senate.
There was big news today from a quarter that made it easily overlooked. In a decision about the power of the Securities and Exchange Commission to judge those accused of engaging in securities fraud, the United States Court of Appeals for the Fifth Circuit ruled that “Congress unconstitutionally delegated legislative power to the SEC by failing to provide an intelligible principle by which the SEC would exercise the delegated power, in violation of Article I’s vesting of ‘all’ legislative power in Congress….”
Congress created the Securities and Exchange Commission in 1934, after the Great Crash of 1929 revealed illegal shenanigans on Wall Street. The SEC is supposed to enforce the law against manipulating financial markets. The Fifth Circuit covers Louisiana, Texas, and Mississippi, and its judges lean to the right. Today’s decision suggests that the leaked draft of the decision that would overturn Roe v. Wade has empowered other judges to challenge other established precedents.
What is at stake with this decision is something called the “nondelegation doctrine,” which says that Congress, which constitutes the legislative branch of the government, cannot delegate legislative authority to the executive branch. Most of the regulatory bodies in our government since the New Deal have been housed in the executive branch. So the nondelegation doctrine would hamstring the modern regulatory state.
According to an article in the Columbia Law Review by Julian Davis Mortenson and Nicholas Bagley, the idea of nondelegation was invented in 1935 to undercut the business regulation of the New Deal. In the first 100 days of his term, President Franklin Delano Roosevelt set out to regulate the economy to combat the Great Depression. Under his leadership, Congress established a number of new agencies to regulate everything from banking to agricultural production.
While the new rules were hugely popular among ordinary Americans, they infuriated business leaders. The Supreme Court stepped in and, in two decisions, said that Congress could not delegate its authority to administrative agencies. But FDR’s threat of increasing the size of the court and the justices’ recognition that they were on the wrong side of public opinion undercut their opposition to the New Deal. The nondelegation theory was ignored until the 1980s, when conservative lawyers began to look for ways to rein in the federal government.
In 2001, the Supreme Court unanimously rejected the argument in a decision written by Justice Antonin Scalia, who said the court must trust Congress to take care of its own power. But after Justice Clarence Thomas suggested that he might be open to the argument, conservative scholars began to say that the framers of the Constitution did not want Congress to delegate authority. Mortenson and Bagley say that argument “can’t stand…. It’s just making stuff up and calling it constitutional law.” Nonetheless, Republican appointees on the court have come to embrace the doctrine.
In November 2019, Justice Brett Kavanaugh sided with Justice Neil Gorsuch-—Trump appointees both—to say the Court should reexamine whether or not Congress can delegate authority to administrative agencies. Along with Chief Justice John Roberts and Justice Thomas, they appear to believe that the Constitution forbids such delegation. If Justice Amy Coney Barrett sides with them, the resurrection of that doctrine will curtail the modern administrative state that since the 1930s has regulated business, provided a basic social safety net, and promoted infrastructure.
As Justice Elena Kagan pointed out, the nondelegation doctrine would mean that “most of Government is unconstitutional.”
In today’s decision, it is no accident that Judge Jennifer Walker Elrod's majority opinion recalls what President Ronald Reagan, at a press conference in 1986, called the “nine most terrifying words in the English language”: “I'm from the government, and I'm here to help.” Reagan began the process of dismantling the New Deal government, and its achievement seems now to be at hand.
The decision will almost certainly be appealed.