Girardi | Keese

The Nuclear Option and How Its Blast Could Hit the Environmental Protection Agency

First, the nuclear option


The "nuclear option" is a reference to extremes. At the moment, Senate Democrats have secured enough votes to block Gorsuch's confirmation to the Supreme Court, which means that Senate Republicans might now consider using the nuclear option.

The nuclear option is a process by which lawmakers override rule-making precedent to allow for a simple majority of votes, rather than a supermajority. The nuclear option, if Senate Republicans move ahead with it, could clear a path for Trump nominee Neil Gorsuch, because a simple majority vote would end the Democratic filibuster.

Lawmakers have pushed the button on the nuclear option in other circumstances, such as in 2013, during the Obama administration. In this instance, lawmakers voted to end the use of filibuster against all executive and judicial branch nominees except for Supreme Court nominees. Nominations to the Supreme Court have remained untouched, but as CBS News characterizes it, the nuclear option would "explode" that precedent.

Gorsuch is confirmed

CBS News says that Gorsuch's confirmation is a "foregone conclusion," provided Senate Republicans move ahead with the nuclear option. On paper, Gorsuch seems to be well qualified for a seat on the bench (as well qualified as Obama's nominee Merrick Garland, who was never afforded a hearing in front of lawmakers during Obama's presidency, and thus never had the opportunity to be confirmed). Assuming Senate Republicans move ahead, lawmakers will confirm Gorsuch to the bench in short order, and America will have its replacement for the late Justice Scalia.

Finally, 'deconstruction' of the administrative state

It's a bit of a leap to draw a straight line from the Supreme Court to the dismantling of the administrative state - federal agencies like the Environmental Protection Agency and the Consumer Financial Protection Bureau immediately come to mind - but that's the leap made by Mother Jones. Stephanie Mencimer writes that Gorsuch "could be the key" to one of the Trump administration's main goals, via White House chief strategist Steve Bannon, of "deconstruction of the administrative state."

Given Gorsuch's "originalist" predilections when it comes to constitutional interpretation, it's possible that Gorsuch will rule much like Justice Scalia. This prompts Mencimer to predict that Gorsuch could "help kneecap the system in one stroke if the right case comes up on the docket," such as one that puts an end to Chevron, a Supreme Court case that gave deference to federal agencies' rule-making power, which allows them to enforce the laws as passed by Congress.

Why federal agencies matter

Bannon wants us to believe that the administrative state is running amok, usurping power from the three traditional branches of government. But, like so much else, that's a gross mischaracterization, and one that in this case distorts the true function or purpose of a federal agency. Agencies like the EPA and the Consumer Financial Protection Bureau help to enforce the laws as duly created and interpreted by the legislative and judicial branches.

With the administrative state deconstructed, a weakened EPA won't stop corporations from polluting our air, as Congress wanted when it passed the Clean Air Act. Nor will a shuttered Consumer Financial Protection Bureau be there to stop negligent bankers and financial fraudsters from picking the pockets of the middle class, as Congress wanted when it passed the Dodd-Frank Wall Street Reform and Consumer Protection Act.

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