Republicans Ruin Everything

A Brief Discussion of Field Preemption, and Hypocrisy

Remember like six months ago when I wrote that Donald Trump and Republicans would blow off all their rhetoric about states’ rights and a weaker federal government when it came to environmental regulations? They’re doing that. The DOJ is currently suing Michigan and Hawaii to block lawsuits those states filed against oil companies over damages from greenhouse gases. Puerto Rico dropped a similar lawsuit for fear the DOJ would come after them too. The Trump DOJ is claiming that the Clean Air Act “creates a comprehensive program for regulating air pollution in the United States and ‘displaces’ the ability of states to regulate greenhouse gas emissions beyond their borders”. In other words, they’re saying the Clean Air Act means states can’t do anything to protect clean air. This is the field preemption problem I was talking about in my earlier post. Don’t be too impressed by the fact that I saw this one coming. Literally anyone who even knows what field preemption is knew that the Trump White House was going to do this.

The thing that might get talked about less are the knock-on effects of this maneuver. For all their whining about “lawfare,” American conservatives and their demon corporate masters have a long tradition of subverting progressive laws and regulations. One of the better known examples might be using the 14th Amendment — which was designed to provide substantive due process to all citizens, impart the birthright citizenship that would correct the travesty of the Dred Scott decision, and protect persecuted minorities from exploitative state governments — to invent the constitutional rationale for corporate personhood that has given us everything from Citizens United to Burwell v. Hobby Lobby. That second one established that corporations (not “people in corporations,” but the corporations themselves) have a religious right to discriminate against people. The consequence of these kinds of policy inversions is that they make legislating positive change much, much harder.

This is, for what it’s worth, one of the many ongoing problems with Anglo-American common law. In most other countries, legislators can pass a law, and the law means what it says. In the United States, the United Kingdom, and a few other places, legislators can pass a law, or amend the Constitution, and conservative judges can and often do interpret it to mean nearly the opposite of what it actually says. Or, every so often, a liberal judge just makes some shit up. To make matters worse, in the United States at least, court cases aren’t published by the government. Legislation is just the basis of the law; courts actually make the law. Every citizen is expected to know the law, but it isn’t published and made available for free. Private companies publish and index it, and you usually have to pay for access in order to make sure that your precedent is good. This is the legal tradition I spent three years training in while I was in law school, and I’ve always thought the whole thing was complete bullshit.

Meanwhile, you’ve got NIMBYs, suing to block public housing projects with laws that were meant to protect the environment , and Trump trying to use the existence of the EPA (which he’s trying to defund and eliminate) and the Clean Air Act, (which he’ll otherwise refuse to enforce), in order to block states from stepping into the gap left by federal abrogation, and attempting to find their own pathways to climate justice. Which raises the question: what kind of environmental law — or civil rights law, or freedom of speech law — could we write in the future that these assholes couldn’t turn on its head?

The thing Trump’s doing isn’t just some stupid, reckless, illegal bullshit. It’s also that. But, additionally, it undermines the whole idea of legislating and regulating. That maybe the larger danger here.