Donald Trump is presiding over the most withering, devastating, and trenchant attack on the American administrative state this nation has ever known

he administrative state, a pillar of modern American government, is tasked with making and enforcing economic and environmental regulations, designing and running social welfare programs, fighting crime and corruption, providing for the national defense and so much more.

Yet, in a little more than nine months, Trump has taken aim and hit his bull’s-eye. Far from the public’s gaze, he’s rescinded, rolled backed, and reversed countless environmental, labor, education, transportation, food and drug, and consumer protection rules and regulations.

Cast largely as liberty enhancing, these deregulatory efforts endanger the safety, health, and welfare of all Americans, not to mention a good deal of the rest of the world who depend on the United States to do its part to combat global warming, banking and securities fraud, and worker exploitation.

At the same time, Trump is vilifying the professional bureaucracy, that vast community of apolitical, career officials whose work it is to design, administer, and demand compliance with administrative regulations—and who are, by congressional design and longstanding practice, well positioned to question and challenge the directives of an abusive, impulsive, or simply hyperpartisan president.

Administrative Conference of the United States
Agency for Healthcare Research and Quality
Agency for Toxic Substances and Disease Registry
Centers for Medicare and Medicaid Services
Central Intelligence Agency
Commodity Futures Trading Commission
Congressional Budget Office
Congressional Research Service
Consumer Financial Protection Bureau
Consumer Product Safety Commission
Drug Enforcement Administration
Farm Credit Administration
Federal Bureau of Investigation
Federal Communications Commission
Federal Deposit Insurance Corporation
Federal Election Commission
Federal Energy Regulatory Commission
Federal Housing Finance Agency
Federal Insurance Office
Federal Labor Relations Authority
Federal Trade Commission
Financial Stability Oversight Council
Food and Drug Administration
Institute of Education Sciences
Internal Revenue Service
Interstate Commerce Commission
National Center for Education Statistics
National Credit Union Administration
National Labor Relations Board
National Recovery Administration
National Security Agency
Occupational Safety and Health Administration
Office of Federal Contract Compliance Programs
Office of Financial Research
Office of Foreign Labor Certification
Securities and Exchange Commission
Securities Investor Protection Corporation
Transportation Security Administration
U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives
U.S. Bureau of Land Management
U.S. Centers for Disease Control and Prevention
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Department of Agriculture
U.S. Department of Commerce
U.S. Department of Defense
U.S. Department of Education
U.S. Department of Energy
U.S. Department of Health and Human Services
U.S. Department of Homeland Security
U.S. Department of Housing and Urban Development
U.S. Department of Justice
U.S. Department of Labor
U.S. Department of State
U.S. Department of the Interior
U.S. Department of the Treasury
U.S. Department of Transportation
U.S. Department of Veterans Affairs
U.S. Energy Information Administration
U.S. Environmental Protection Agency
U.S. Equal Employment Opportunity Commission
U.S. Federal Reserve System
U.S. Forest Service
U.S. General Services Administration
U.S. Geological Survey
U.S. Government Accountability Office
U.S. Government Publishing Office
U.S. Immigration and Customs Enforcement
U.S. Merit Systems Protection Board
U.S. Mission to the United Nations
U.S. Office of Information and Regulatory Affairs
U.S. Office of Management and Budget
U.S. Office of Personnel Management
U.S. Small Business Administration
U.S. Social Security Administration
United States Civil Service Commission

Raymond Kethledge

1 - Appointed by anti-choice President George W. Bush (and Bush is anti-woman - if you're anti-choice, you're anti-woman. You either agree women have the right to make reproductive choices or you don't - and if you don't, you're telling me that you get to make my choices for me and that I don't matter.)

2 - He was the Judiciary Committee counsel for anti-choice Sen. Spencer Abraham (R-MI) while Sen. Abraham was pushing for the Federal Abortion Ban.

3 - He supported the Supreme Court nomination of Samuel Alito; Alito became the fifth vote to uphold the constitutionality of the Federal Abortion Ban.

4 - Kethledge has contributed to anti-choice candidates and elected officials including Spencer Abraham, George W. Bush, Joe Knollenberg, and Keith Butler.

5 - Kethledge is active in the conservative, anti-choice Federalist Society.

Kethledge is a strong "originalist" - the same as the died-way-too-late Scalia. Kethledge is also a hardcore "religious liberty" judge. Yes, that would be "religious liberty" as defined by the religious right.

Kethledge is also a challenger of the "administrative state'" - meaning regulatory agencies/social services - meaning he would rather dismantle the power of regulatory agencies - like what Pruitt did to the EPA and what Trump will continue to do with his next appointment.

If you reverse all regulatory actions that serve the people, you end up with Trump world - where the EPA now thinks clean water is overrated. Now apply that thinking to all social service agencies that regulate and serve the greater good. (USDA, Civil Rights offices within agencies and offices of government, etc..)

Kethledge is exactly like Gorsuch in that regard. Both Gorsuch and Kethledge believe the "Chevron" standard - "which requires that courts defer to agency interpretations of federal law" - gives too much power to agencies like the EPA to regulate what businesses and people do.

Garza v Hargan:Garza revolves around Jane Doe (as she is described in court filings), an undocumented minor who came to the United States in September without her parents. The government placed Doe in a federally funded shelter, where she learned that she was pregnant. She requested an abortion, but the shelter refused, following guidance issued by the Office of Refugee Resettlement—a wing of the Department of Health and Human Services that oversees shelters for undocumented, unaccompanied minors like Doe. In March, ORR announced that these shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director.

Lloyd, a Trump appointee and anti-abortion activist, refuses to provide such approval. Instead, he directs shelters to take pregnant minors to “crisis pregnancy centers” to be “counseled” out of their decision. At least once, he has also personally called a minor to urge her not to terminate her pregnancy. Doe’s shelter took her to a crisis pregnancy center, but it did not change her mind

A staff member at the shelter then called Doe’s mother and informed her that her daughter was pregnant. Still, Doe wanted the abortion. She went before a state judge and obtained judicial bypass, as required by Texas law when a minor wants an abortion without parental consent. But the federal government declined to honor the judge’s decision. It ordered the shelter to prevent Doe from getting the abortion that, under Texas law, she is legally entitled to obtain.

More

Despite the fact that Doe has been granted a judicial bypass by the Texas courts, and despite a federal court having ordered that she be allowed to have the procedure, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit refused to order the Department of Health and Human Services to allow her to have the procedure. In four weeks she will be too far along in her pregnancy to terminate in Texas, yet the federal appeals court told HHS last week that they now have 11 days to find a sponsor to take charge of Jane Doe. That is a process that can take months. This week, her lawyers asked the full D.C. Circuit to revisit that decision.

Jane Doe, a pregnant teenager currently staying at a shelter for unaccompanied immigrant children in Texas, has been prevented from getting an abortion by the Office of Refugee Resettlement (ORR). She has already been subjected to egregious delays to her medical care as well as counseling and procedures without her consent:

1 - The Department of Health and Human Services required her go to a government “approved” counselor at a religiously affiliated, anti-abortion “Crisis Pregnancy Center,” which urged her to continue her pregnancy.

2 - Federal officials forced her to have a medically unnecessary sonogram against her will.

3 - ORR blocked her from travelling to her medical visits, even after judicial authorization and after her court-appointed attorney and guardian have offered to provide transportation to the abortion provider. She has also secured private funding for her abortion.
Federal officials told Jane’s mother about her abortion despite her clear wishes not to tell her parents and despite Jane getting a court order under Texas law to consent to her abortion without notification of or consent from her parents. Jane did not want to involve her parents because they were physically abusive to an older sister who became pregnant.

On October 25, Jane Doe obtained an abortion

In December, the ACLU became aware of two additional unaccompanied immigrant minors in ORR custody in two additional states (other than Texas) who sought but were refused access to abortion by ORR. On December 15, we returned to court seeking another temporary restraining order prohibiting the government from blocking these young women (known as Jane Roe and Jane Poe in court papers) from accessing abortion.

The government contended that because Jane Roe and Jane Poe are in the government’s care, the government is entitled to determine what it thinks is in their “best interest” and act accordingly; however, in the states in which these young women are detained, even a parent could not veto a minor’s decision to obtain an abortion.

Judge Henderson dissented, arguing that J.D. (Jane Doe) was not a “person” under the Due Process Clause, and thus did not have the same abortion rights citizens do.

In other words, immigrants at the border/ in detention don't have rights under the Constitution because they aren't recognized as "people" under said Constitution.

Judge Kavanaugh also dissented, joined by Judges Henderson and Griffith. He defended the panel’s decision allowing more time to find a sponsor who could remove J.D. from ORR’s custody, characterizing the en banc majority’s decision as creating “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
39. Id. at 752 (Kavanaugh, J., dissenting).

Instead, he would have held that sponsorship is not an undue burden, arguing that avoiding the need for the government to facilitate the abortion successfully balances the parties’ interests.

Kavanaugh earlier suggested the young girl could wait until she had a sponsor who would "facilitate" an abortion, though she already had been waiting and Texas law has a 20 weeks cut-off. The longer she had to wait the less likely she could get a legal abortion.

The government (Trump/Sessions) threw up all kinds of roadblocks and even knowing this, Kavanaugh still claimed there was no undue burden on the young girl to obtain a sponsor in order to get an abortion. Kavanaugh also argued that the government had a vested interest in forcing the young girl to carry her child to term.

Precedent and Jurisprudential Disagreement from the Texas Law Review, 2015.


III. Institutional Legitimacy and Reliance Interests

Because stare decisis is relatively weak in constitutional cases, the moderating function is the main contribution of the constraint against overruling in cases involving deep-seated jurisprudential disagreement. It forces the Court to proceed cautiously and thoughtfully before reversing course, but it does not force the Court to retain precedent. Yet while this may be consistent with the Court’s actual practice, it is contrary to the arguments of those who have argued in favor of a significantly stronger role
for stare decisis in constitutional cases.89

It also arguably gives short shrift to the risks associated with departures from precedent—in particular, preservation of the Court’s institutional legitimacy and the protection of reliance interests.90 This Part considers those concerns in turn and concludes
that even a weak system of constitutional stare decisis protects institutional legitimacy and reliance interests more than is commonly supposed.

A. Institutional Legitimacy

Leaving room for new majorities to overrule old ones allows changed membership to change what the Court says the Constitution means. One of the stated goals of stare decisis, including stare decisis in constitutional cases, is institutional legitimacy, both actual and apparent.91 If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline.92 Its members might be seen as partisan rather than impartial93 and case law as fueled by power rather than reason.94 Others have challenged the view that protecting the Court’s reputation is a valid reason to retain precedent.95 Akhil Amar captures the criticism well:

“ It does not seem to me that when the Supreme Court has made a mistake, it ought to respond by not telling the citizenry because it fears that the American people cannot handle the news.”96

But even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage. Stare decisis is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not
been afraid to exercise its prerogative to overrule precedent.97 Still, public confidence in the Court remains generally high.98 Moreover, members of the public (and particularly elites) regularly argue that the Court should overrule certain of its cases.99

If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.

Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule. The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy.1