WolfeNotes.com

The Corporate Take Over of Supreme Court Has Been A Long Time Coming

Overruling Of Chevron Not The Final Nail In Coffin of New Deal “Administrative State”

Through the wonders of the internets, I’ve managed to cultivate a correspondence with a friend in Australia who had read a blog post and reached out to share his experience and ideas.

This morning, he sent me a kind note of support, in light of the recent Supreme Court decision repealing the Chevron Doctrine, urging me to write on that topic.

That prompted reflection and the realization that I had been reading, thinking and writing about these issues for over 40 years – beginning with a graduate school course in Administrative Law back in 1983.

I had finished my undergraduate degree in the fall term of 1982 and had the spring semester to hang around before entering graduate school at Cornell in the fall of ’83. So, I took a few graduate courses that spring semester, including the esoteric topic of administrative law. Not many people penetrate this field, and it is virtually invisible in public dialogue and even public policy circles. But it fit within my career interests in following a more left leaning New Deal legacy.

I loved it and managed to apply what I learned on a daily basis over the next 40 years in regulatory policy in and out of State government.

So, it is with extreme frustration and disgust that I’ve watched the Supreme Court captured by radical right wing corporate forces, under the guise of the Koch Brothers and corporate funded Heritage Foundation’s libertarian banner. That corporate project all really began with the Powell Memo (1971).

The Court’s recent rejection of the Chevron Doctrine – ironically the outcome of an environmental lawsuit against a pro-polluter regulation by the Reagan administration EPA – is not the final nail in the coffin of the New Deal “administrative state”.

The court will expand its use of the “major questions” doctrine and revive the 19th Century pre-New Deal non-delegation doctrine to further “dismantle the administrative state”.

And the Court will likely reject the flood of public interest litigation challenging the Trump administration’s implementation of Project 2025:

• The Right Wing’s New Long Game Plan – “Project 2025″

• Trump Is Now Marketing “Project 2025″ – Promises $110 Billion Deregulation & Tax Break Deal To Big Oil And Gas

So much for the concept of “history and tradition”.

At any rate, I sent my friend Jim this note summarizing some of my prescient and unheeded warnings:

Jim – I saw this coming over 7 years ago:

• Gorsuch Misled The Senate On His Radical “Chevron” Opinion

Warned again when Kavanaugh was nominated:

• Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court

Wrote about it many times since, even predicted it again last year:

• What The “Dismantling Of The Administrative State” Would Mean To Daily Life – Little Awareness Of The Looming Threats Of The Likely Confluence Of The US Supreme Court’s Rejection of the “Chevron” Doctrine

I even tried to reach out to the EJ activist to warn, see:

• Louisiana Federal Court That Struck Down EPA’s “Cancer Alley” Environmental Justice Program Relied On The “Major Questions” Doctrine

No one listens and very few care.

At this point, I’m looking into emigration options.

Wolfe

Secrecy Hides Extent Of The Problems And Risks To Public Health

Federal USDA Reliance On Voluntary Sampling Has Failed

The Murphy administration’s Department of Agriculture just denied my public records request for data on sampling for bird flu at NJ dairy and poultry farms (and cows milk).

I filed that data request because recent national news reports document serious flaws with the US Department Of Agriculture’s (USDA) national voluntary sampling program for dairy farms, cows, and milk.

For example, Politico reported:

• Avian flu spread in cows not being tracked, posing greater risk of human transmission

Reliance on individual dairy farmers to help track the spread of avian flu is leaving the federal government without the data necessary to understand — and slow — the virus’ spread in the U.S. […]

… many dairy farmers are declining to test their cows, leaving the nation vulnerable to a situation in which federal officials won’t have adequate warning if the virus evolves and poses a greater risk of infection to people.

The federal response is largely focusing on voluntary efforts by farmers to help track and contain the outbreak. But many farms still have not signed up for USDA efforts to boost surveillance and testing for the virus.

The NJ Dept. of Agriculture’s denial of public access to this information highlights flaws in the NJ Open Public Records Act (OPRA). It is also an abuse of power in keeping this critical public health data secret.

The public has a right to know about this information, as it involves direct threats to their health.

Secrecy allows State bureaucrats to avoid accountability and hide their potential mismanagement of these risks.

The public has no ability to understand if the NJ Dept. of Ag is replicating the same flaws as the failed USDA national program that scientists have criticized.

The Dept. of Ag denial was issued by Robert Vivian, who wrote:

Mr. Wolfe,

Your records request W219658 is denied under N.J.A.C. 2:10-2.3.

 N.J.A.C. 2:10-2.3. Records designated confidential

In addition to records designated as confidential pursuant to the provisions of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1et seq., any other law, rule, Executive Order, or complete (final) and intermediate (interim) reports, including necropsy reports, shall not be considered government records subject to public access pursuant to OPRA.

Sincerely,

Robert P. Vivian, Jr.

I didn’t ask for “necropsy reports” or “complete (final) and intermediate (interim) reports”. I asked for data.

I even agreed to redaction of the name of the farm, to protect farmer’s privacy.

This is outrageous and a totally unacceptable abuse of OPRA.

I’m calling on NJ media to investigate and the Legislature to conduct oversight on these issues.

The public health community should weigh in as well and pressure Gov. Murphy to open us his State agencies and stop the secrecy.

Extent Of The Spread Of The Virus Is Unknown Due To Lack of Data

Farmers Not Participating In Voluntarily Sampling Program

Extent Of Spread Of Virus To NJ Farms, Wildlife And People Unknown

Last month, based on a New York Times page one story, I chastised the Murphy DEP’s mismanagement of dead vultures left to rot in the forest and spread disease in light of scientific concerns with the spread of bird flu, see:

• Dead Vultures Coming Home To Roost

I recently read an even more alarming story coincidentally published on that same day by Politico.

The Politico story disclosed the fact that the voluntary efforts of the Biden administration to collect data on the extent of the spread of the virus were failing:

Reliance on individual dairy farmers to help track the spread of avian flu is leaving the federal government without the data necessary to understand — and slow — the virus’ spread in the U.S.

The biggest challenge for the federal response, agriculture and public health officials told POLITICO, is that the more the virus spreads among dairy cows, the more opportunity it has to mutate and become easier to jump to additional humans. The number of documented infected dairy herds in recent weeks has risen rapidly — and several other states have confirmed initial infections in cows.

But many dairy farmers are declining to test their cows, leaving the nation vulnerable to a situation in which federal officials won’t have adequate warning if the virus evolves and poses a greater risk of infection to people.

The federal response is largely focusing on voluntary efforts by farmers to help track and contain the outbreak. But many farms still have not signed up for USDA efforts to boost surveillance and testing for the virus. To date, 94 herds across 12 states have tested positive for bird flu, but the testing has covered a mere fraction of the nation’s nine million dairy cattle. Only about 45 exposed and symptomatic humans have been tested for avian flu, CDC Principal Deputy Director Nirav Shah said in a Thursday briefing with reporters.

Given this lack of data at the federal level and the failed reliance on voluntary efforts by farmers, I thought I’d look into how the Murphy Administration was responding at the State level, particularly given the DEP’s prior mismanagement and the known presence of bird flu in New Jersey.

So, on June 21, I filed an OPRA request to DEP asking for the data on wildlife:

I request sampling data results for avian (bird) flu sampling conducted by the New Jersey DEP Division of Fish and Wildlife on NJ wildlife, including birds, dogs, cats, raccoons, bears, fox, coyote, and any other species, conducted during the period 1/1/23 to the present. I request this data by location (by municipality and county). Aggregate data reports, by species, in lieu of individual sampling results are

acceptable.

I filed a similar request to the Murphy Department of Agriculture to understand how many NJ farms were impacted, see:

I request sampling data results for avian (bird) flu sampling conducted at NJ poultry and dairy farms during the period 1/1/23 to the present. The names of the farms may be redacted, but I request individual farm sampling data and farm location (by municipality and county). Sampling results requested include sampling conducted by the NJ Dept. of Agriculture, USDA and/or private farms. Request electronic response and avoid fees per paper page & postage

I suspect that the Murphy Administration is replicating the federal government’s failed reliance on voluntary participation by NJ farmers.

I suspect that the NJ Department of Agriculture lacks reliable and adequate data on NJ farms.

I suspect that the Murphy Department of Environmental Protection has similarly stuck its head in the sand and has not developed a credible sampling program to determine the extent of the spread of the virus to wildlife.

And, although I did not file an OPRA for this data, I suspect that the Murphy Department of Health has even less data than the federal CDC and has no human sampling program in place.

Th OPRA reply deadline is this week, so we’ll let you know if my suspicions are accurate and what the data say.

In the meantime, perhaps some intrepid journalist out there might inquire at the Murphy DoH, DoAg and DEP.

And maybe our legislators could make inquiries and hold oversight hearings.

And maybe the public health community might pressure the administration and educate the public and the media.

The June 27 NJ Spotlight Op-Ed  “call for vigilance- curiously published a week AFTER my OPRA request – was written by former government officials and did NOT highlight the fatally flawed voluntary response thus far or demand any NJ State government responses.

The Assange legal team and various alternative media outlets are creating the completely false and absurd impression that the Assange plea deal is a “vindication” and “huge win for free speech” (NY Times story:

His lawyers said that he was not subject to a gag order or to any other limitations as part of his deal. They added that he would also seek a pardon from President Biden, describing his release as long-sought vindication for acts of disclosure that they said had served the public interest.

“This is a huge win for Australia and for Australian democracy,” Jennifer Robinson, one of Mr. Assange’s lawyers, said. “This is a huge win for free speech.”

I call complete bullshit on that. This was a huge blow against the First Amendment, a free press, free speech and it chills and even criminalized investigative journalism.

Assange committed no crime – he was acting as both a publisher and journalist.

But he pled guilty under the Espionage Act to conspiracy to obtain confidential defense information. The alleged conspiracy involved advising his journalistic source, Bradley Manning, on how to cover his computer tracks and avoid detection. Manning had authorized access to the classified documents he leaked, Assange did not help with access.

Every investigative journalist works with sources – particularly whistleblowers – to advise them how to obtain information, convey information in confidence, and cover their tracks and avoid detection. I’ve done that myself and I am not a journalist.

Under the legal theory of the Assange plea deal, virtually every investigative reporter who obtains, is provided, handles, and/or publishes classified information could be prosecuted under the Espionage Act.

The Assange legal team threw the US First Amendment under the bus during the UK Court proceedings, where they argued that Assange was NOT protected by the First Amendment. They made this argument not based on any legal analysis or principled grounds, but to avoid extradition to the US.

It’s complicated, but basically the British Court set two conditions that could dismiss the extradition request: one of them was that if Assange was NOT protected by the First Amendment in US criminal court, then he could not be extradited. So Assange’s lawyers claimed the First Amendment did not apply. I wrote about that several weeks ago in this post:

• Assange Advocates Have Gone Off The Rails – Of Course Assange Has Constitutional Rights In A US Criminal Court Proceeding

Now, a few weeks later, Assange himself argues the exact opposite. In the federal Court plea hearing Assange claimed that he thought the First Amendment protected him, totally contradicting his UK extradition arguments just weeks before: (Consortium News) 

“Working as a journalist, I encouraged my source to provide information that was said to be classified,” Assange replied. “I believed the First Amendment protected that activity, but I accept that it was a violation of the espionage statute.”

Assange then significantly added: “The First Amendment was in contradiction with the Espionage Act, but I accept that it would be difficult to win such a case given all these circumstances.”

With a gun to his head, Assange cut a deal, period. He did not fight to defend the First Amendment, like Dan Ellsberg did.

Let’s not call that any kind of victory. The National Security State is emboldened and President Biden, who supported the Trump indictment and sought extradition is not held accountable. It is exactly the same legitimation of government crime as when President Obama’s “look forward not backward” approach normalized Bush war crimes, illegal war, GWOT and the Wall Street bailout.

Politically, this all happened when Biden is campaigning on threats to democracy and correctly accusing Trump of threats to the Constitution, vindictive abuse of the prosecutorial power, undermining the independence of the judiciary, and politicizing law enforcement – all of which is exactly what Biden’s DoJ is hypocritically doing to Assange (the Democratic Hillary fans and the CIA are ruthlessly vindictive. Just rad some of the reader comments on The NY Times stories. They HATE Assange. Hillary even wanted to drone him. CIA planned to assassinate him). Unreal that Biden gets a pass on this. That’s political malpractice by the Assange strategists.

Assange’s lawyers were either incompetent (which I strongly doubt) or they seek to obfuscate these strategic errors and legal issues with absurd statements, like this: (Consortium News)

Mr. Assange also said clearly he believes there should be First Amendment protection for that conduct, but the fact of the matter is, as written, the Espionage Act does not have a defense for the First Amendment.

Say what? A statute does not need to have a “defense for the First Amendment”.

That turns the First Amendment on its head! “Congress shall make no law…”

The First Amendment trumps acts of Congress! It has no exception for the Espionage Act.

To remind everyone of what was at stake here, let’s revisit the Pentagon Papers Supreme Court decision, upholding real press freedom and the First Amendment (1971) – a precedent that the Assange lawyers were too timid to assert:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government.

[…]

The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes—great man and great Chief Justice that he was when the Court held a man could not be punished for attending a meeting run by Communists.

A concurring opinion was even more specific and compelling in addressing the Espionage Act:

While I join the opinion of the Court I believe it necessary to express my views more fully.

It should be noted at the outset that the First Amendment provides that ‘Congress shall make no law * * * abridging the freedom of speech, or of the press.’ That leaves, in my view, no room for governmental restraint on the press.1

There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. § 793(e) provides that ‘(w)hoever having unauthorized possession of, access to, or control over any document, writing * * * or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates * * * the same to any person not entitled to receive it * * * (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both.’

The Government suggests that the word ‘communicates’ is broad enough to encompass publication.

There are eight sections in the chapter on espionage and censorship, §§ 792—799. In three of those eight ‘publish’ is specifically mentioned: § 794(b) applies to ‘Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates * * * (the disposition of armed forces).’

Section 797 applies to whoever ‘reproduces, publishes, sells, or gives away’ photographs of defense installations.

Section 798 relating to cryptography applies to whoever: ‘communicates, furnishes, transmits, or otherwise makes available * * * or publishes’ the described materials.2 (Emphasis added.)

Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.

[…] Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that:

‘Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.’ 64 Stat. 987.

Thus Congress has been faithful to the command of the First Amendment in this area.

Huge Opportunity To Lead On A Bold Progressive Agenda

But Don’t Expect The Current Crop Of Lame NJ Hacks To Draft That Agenda

[Update – 6/24/24 – Wow. My timing was eerily prescient – the Fulop campaign released this reform plan today. It addresses some of the government reform items I mentioned, but didn’t go so far as to include whistleblower protections, adequate OPRA reforms, or corporate capture and revolving door, see:

• Meaningful Government Reform In New Jersey ~~~ end update]

The algorithm just sent me a Tweet from 2025 NJ Gubernatorial candidate Steve Fulop regarding transportation infrastructure.

I was impressed by Fulop’s call for reallocation of $10 billion slated for NJ Turnpike expansion funds to mass transit. Fulop Tweeted:

Re-Allocation of the $10B NJ Turnpike widening project into mass transit investment instead is the next step towards correcting our mass transit issues.

Our campaign was the first to float the idea of the CBT dedication to NJT last year that will now be law and now we must continue being proactive with the next reasonable decision towards mass transit improvement.

Longer term beyond those we have outlined our detailed transportation plans at http://stevenfulop.com – we are the only campaign putting our policy bc that is what NJ deserves

I was so impressed by a politician actually proposing a sound public policy I support, that the Fulop Tweet sparked somewhat of a Twitter storm in my brain in posting comments on it.

I strongly doubt that the current crop of so called NJ environmental and climate leaders have the vision, competence, and integrity to be reaching out to his campaign with bold demands, so maybe I can shame them into at least something of serious substance:

So, I here cut and paste them into an informal strategic & policy Memo To The Fulop Campaign.

1. I just checked your website for “policies”. You don’t have climate, energy, land use, environmental quality, parks, green cities, environment justice, or public health policies posted. Do NOT rely on the usual suspects to draft these policies. HUGE OPPORTUNITY HERE if done right (in policy substance, not just message and narrative).

2. Don’t expect any of the lame “environmental and climate leaders” to help. They have no vision, no competence, courage, and integrity. You will need your Staff to put the policy plans out, create public review process, and embarrass them into support, like Gov. McGreevey did on Highlands.

3. Land use is back on the agenda. Don’t go for the single issue (e.g. warehouse) incremental crap. Adopt a moratorium on destruction of what’s left of NJ forests and farmlands. Go big on reforestation and urban forestry and urban parks. Put regulatory teeth in the State Plan. Time for bold leadership and big plans.

4. Your next regional and infrastructure policy plan should focus on bicycles, restoring riverfronts, and urban parks. Duck Island is Trenton could be the first example. Tremendous opportunity here with vision and leadership.

5. Climate & energy policy agenda needs to put regulatory teeth and real investment in Murphy administration’s rhetoric, press releases, & unenforceable Executive Orders. Moratorium on new fossil, phase out of existing. Retrofit existing development, residential solar, public power. Terminate NJ role in PJM regional corporate grid. Mandates for accelerated electrification. Guarantee jobs (just transition).

7. There also needs to be a coastal “strategic retreat” plan to address resettlement of displaced residents and businesses and the natural recovery of highly vulnerable coastal lands. Shift beach replenishment funding to that. Built Bike & shuttle/light rail to beaches along coast.

8. No more infrastructure or development in the coastal zone – it will be inundated in 20 years or so. Time to start planning for “strategic retreat”.

8. Expand the Riverline – light rail in the medians of Rt 1. to Newark and Rt. 31 to at least Flemington.

9. The Environmental justice agenda needs to close loopholes in current law; ratchet down on air pollution, particularly on mobile sources and hazardous air pollutants from industry; mandate advanced drinking water treatment; address food deserts; huge public housing program; community gardening, urban forestry, pocket parks, & schools. Green cities. New CCC.

10. Take a fresh look at ways to truly implement NJ’s Hazard Mitigation Plan, particularly on public health/pandemic issues. Repeal liability relief for senior care COVID. Strengthen port infrastructure, rail, river and chemical safety – catastrophic risk management programs, which have been privatized and deregulated by DEP over the years.

11. We’ll need dramatic new forms of revenue generation – wealth tax; high income tax; corporate taxes on Big Pharma and Big Tech; financial transaction fees, et al – to fund these projects. Again, time is ripe to go big & progressive.

12. No more corporate subsidies, even for off shore wind.

13. Claw back the $1 billion in PSE&G nuclear subsidies. Reallocate to a new urban riverfront park that includes PSE&G retired coal power plant property on Duck Island in Trenton.

14. Adopt a Major anti-corruption – transparency – citizen participation – and good government accountability platform.

Include strengthening the OPRA law, repealing the corrupt Murphy rollback. Put teeth in the State Ethics Commission and appoint people with integrity and courage. Open up State government planning and policy development. Enhanced sunshine and whistleblower protections. Take on corporate capture and the revolving door.