Some brief drive-bys as we advance into May – if not slouching toward Jerusalem, at least schlumping toward East Bugsplat.
The first set of reflections is on a case that the U.S. Supreme Court has agreed to hear, involving the power of regulatory agencies to basically – in a vernacular rendering – interpret federal regulatory statutes any old way they want to.
The federal courts’ friendliness to this principle is called “Chevron deference.” It’s named for a 1980s case in which Chevron was a party, but Chevron has nothing to do with the contemporary case the court has agreed to hear. Chevron is also not the party being deferred to in the “Chevron deference” shorthand; that role belongs to whatever federal agency is imposing mandates in the case, based on its interpretation of law.
Legal practitioners all understand what they mean by “Chevron deference,” but the expression is a bit misleading for the general public, as it’s emphatically not about deferring to Chevron, the giant energy company.
The current case is Loper Bright Enterprises, Inc. v. Gina Raimondo (the Biden secretary of commerce), which we’ll call Loper if we need to refer to it again.
An article cited at the plaintiffs’ counsel website summarizes its basic outline thus: “[New Jersey] fishermen are challenging the lawfulness of a regulation that could force them to hand over 20 percent of their pay to third-party at-sea monitors they must carry on their boats—a mandate that Congress never approved by statute and did not give the National Marine Fisheries Service (NMFS) the authority to require by regulation.”
It’s the “mandate that Congress never approved…and did not give the…NMFS the authority to require” part that constitutes what is described as “Chevron deference.” The “deference” is the federal courts’ judicial precedent of letting regulatory agencies get away with this.
Cause of Action’s citation continues: “The U.S. Solicitor General [that is, the administration’s attorney for defending lawsuits like this one in court] recently filed a brief with the Court urging the justices to ignore the checks and balances of the U.S. Constitution in order to preserve the controversial doctrine of Chevron deference.”
The Twitter thread I posted on 1 May, linked above, needn’t be expanded on much. Overturning or just significantly modifying the precedential understanding of Chevron deference would be a very big and a very good development.
But I do want to highlight a related post here at TOC from nearly 13 years ago, when the Obama administration effected a profound but practically unnoticed shift in the regulatory overreach sanctioned by Chevron deference. It’s linked in the thread, but here’s the link again.
In a 2010 regulatory move, OSHA quietly shifted its requirements on businesses with workplace noise concerns. Like the Loper lawsuit case, the OSHA move was about mandating expenditures for regulatory compliance by the businesses. Prior to the new rule, businesses had been able to comply by issuing approved-quality personal protective equipment to employees.
However, the new rule required businesses instead to spend exponentially more on actually abating the noise levels.
The OSHA rule change was exactly the kind that Chevron deference would “defer” to. Like the rule in the Loper complaint, it mandated compliance spending by the regulated businesses, but that spending mandate wasn’t approved by Congress.
In fact, as outlined in my 2010 article, a change like the one proposed by OSHA was supposed to be reviewed by Congress, precisely because it would so significantly increase the compliance burden on businesses. In an eye-bleedingly arcane move, the Obama OSHA did not submit the rule change to Congress for review, but instead merely posted it in the Federal Register for an open-comments period, tacitly ignoring the real impact of the new rule. In effect, OSHA posted it as if all it amounted to was a “minor” shift in the pre-existing cost basis of compliance: from issuing PPE to literally abating workplace noise levels.
That’s the kind of regulatory overreach Chevron deference has been facilitating for years. It’s killing small businesses like machine shops and fishing companies. It’s a poster child for the severely damaging effects of unfettered regulatory discretion, far beyond the original intent of Congress and so hydra-headed that even when Congress has a statutory “review” role, energetic agencies can often just bypass it.
For the sake of everyone in America – businesses, employees, a public that benefits in numerous ways when there’s a thriving economy – this kind of overreach has got to be eliminated.
Another beautiful balloon
Monday 1 May brought the news that on Friday 28 April 2023, another balloon meandered into our national ken, this one over Hawaii.
The disclosure to national media from defense officials didn’t come with many details. Little was said about “doing anything” with regard to the balloon; reportedly F-22 fighter-interceptors were launched to get a look at it. The balloon is said to be moving toward Mexico now. It hasn’t been identified as Chinese, and apparently isn’t thought to be. Defense officials say we don’t know whose it is, but don’t consider it a threat.
So it was interesting to encounter evidence from open-source information, posted on social media, about our reaction to the balloon. Local observers posted photos of the F-22s flying off the east side of the Big Island of Hawaii, and landing at Hilo airport. Other users noted the track in the same area of a KC-135 tanker aircraft. (Big h/ts to the Twitter users cited below. Click through for the full threads.)
In addition, the Air Force’s 613th Air Operations Center (AOC) at Joint Base Pearl Harbor on Oahu reportedly engaged in unusual chatter, incident to a C-17 transport flight headed during this time period to Hawaii from the mainland. The C-17 was asked the following by the 613 AOC: “SIR THIS IS TE 613 AOC AMD WE HAVE A CURRENT SITUATION BREWING HERE SOUTH EAST OF THE BIG ISLAND AND LEADERSHIP IS ASKING IF YOU HAVE PHOTO TAKING CAPABILITY.”
This was probably the most interesting question the C-17 crew had been asked in flight for some time. IntelWalrus is certainly right that a “situation” off the Big Island for which a C-17 Globemaster might be asked to take photos was unlikely to be a naval one. (As stand-in reconnaissance platforms go, the C-17 is a big wallowing hog not designed for the look-down mission.)
As noted by TieDye Intel (F-22 tweets above), a civil air patrol aircraft was also up east of the Big Island at the same time. That, as he says, may or may not have been related; the small Cessna involved wouldn’t have operated at the same altitude as the balloon (about 36,000 feet) and would have been of limited utility in the event.
CAP aficionados weighed in to pooh-pooh the idea, and they’re probably right.
But it’s not impossible that civil authorities might have been interested in observation at lower altitude in connection with the balloon.
I note, for completeness, that when the Chinese balloon showed up over Montana back in February 2023, tweep KanekoaTheGreat reposted information about a Chinese balloon that had passed near Hawaii’s northwest islands a year earlier, in February 2022.
So this latest unidentified balloon isn’t Hawaii’s first close encounter with one.
Granting that the eruption of balloons around the planet is odd and will take some getting used to, there continues to be something “off” in what’s being done about them by our national security apparatus, and how we (the public) are finding out about them.
Since the latest balloon is headed for Mexico, and civilian observers in the continental U.S. almost certainly won’t see it, it seems likely the only reason for making an announcement about it was post-facto realization that civilian media users had in fact recognized a defense response in progress on 28 April. We may venture to say the handling of this event isn’t boosting the public confidence level about our reaction to the balloon activity.
The question in neon letters remains whose balloon it is and where it was launched. We’re past the time when the potential for threat from these balloons could be simply assumed away.
A farewell to news media as we’ve known them
Tucker Carlson was fired from Fox News last week, and Fox News Channel’s viewership promptly took a dive. Journalist Lee Smith has a superb article out on the firing, where it came from, and what it means.
Smith suggests the timing of the whole matter, including the Dominion lawsuit and the settlement, is geared to knocking down FNC viewership just before the 2024 election cycle kicks up the pace, as it will in the next 2-3 months.
“[T]he lawsuit was from the beginning an instrument to hollow out dissident media,” writes Smith. “ The means for doing that was to force out the opposition’s most prominent journalist.”
He continues: “Conservative audiences are right to be mad at Fox for handing over Tucker but should take no joy from the fact the network is hemorrhaging audience share. That was part of the regime’s plan.”
I agree: the evidently massive “cabal” of actors that seeks to clamp down on all forms of media meant for the Dominion lawsuit – and if not that one, probably another one, or a similar threat to Fox – to take down the remaining high-share, mainstream media outlet with any vestige of independence. (The “cabal” – TIME’s word, not mine – which outed itself in February 2021, has had its connections and collusive activities revealed in the “Twitter files” over the last several months. It’s a big chunk of what Smith refers to as the “national security establishment,” by which he means the self-anointed national-security element of the “Deep State.”)
Fox bleeding out all over the marble floors is what the regime hoped for. Anyway, read the whole article. You won’t be sorry.
As articulated in my tweets, however, I can’t advocate sticking around to see Fox just get more and more aligned with the rest of the legacy media, and lose more and more viewers.
For me, it isn’t (and wasn’t) “about” Tucker Carlson, whom I didn’t actually watch that often. I think Carlson is profoundly wrong on some aspects of the Ukraine situation, in fact. (Though not on the points that the U.S. mustn’t put boots on the ground there, and that aiding Ukraine doesn’t require throwing all spending accountability out the window. He’s right about that.)
I disagreed – sometimes with the knowledge and reasons of an expert – with some of Carlson’s reporting and conclusions on other matters as well, usually related to national security and intelligence. I was skeptical of some of his guests.
But what mattered was that he did do his homework, he didn’t try to shut down debate, he gave his guests the opportunity to get their information out, and Fox News had the editorial courage to let him do it. That’s why Carlson’s broadcast was the ratings anchor for the entire FNC lineup: because it had the quality of thought-provoking news and analysis viewers are actually looking for.
As Lee Smith points out, this wasn’t even about the allegations regarding Dominion and other voting system vendors after the 2020 election. Carlson was skeptical to the point of dismissive about those allegations, something you’d never know if you went by the biased mainstream media coverage. He and his show did not, in fact, make credulous or uncareful assertions on those matters.
“Tucker’s broadcasts from the immediate post-election period give clear evidence,” says Smith, “and internal Fox communications prove, that he was skeptical of the claims made by some of the network’s hosts and guests that voting machines had been jimmied to swing the vote to Joe Biden.”
Rather, it was Carlson’s willingness to air a full slate of testimony and facts on topics ranging from 6 January to the COVID-19 response and the virus’s origins that made him the big target. Smith suggests, probably correctly, that Carlson’s airing of a 6 January security camera video was the last straw.
The whole thing – the Dominion lawsuit and its Carlson-targeted aftermath – has been a combination of gaslighting, sleight of hand, and smoke and mirrors. And the key for most viewers who are leaving the network isn’t that they blindly followed Carlson, or that they would tolerate only certain narratives. The key is that it’s regrettably clear Fox lost its own battle for editorial courage in the process.
Without editorial courage, there’s no reason to tune in to Fox. It might as well be CNN. It will be CNN eventually.
The coming months can’t really be previewed with confidence, because we’re already somewhere we’ve never been before. Fox still has some great reporters, but the trust of its viewers has taken two existential hits: the hasty, inexplicable election-night call in Arizona in 2020, and now the firing of Carlson.
Where Carlson, his fellow opinion-show host Dan Bongino, and some of those reporters go, and how long the Hannity and Ingraham lineup can hang on – these will be key indicators of what the media landscape will hold for 2024. In May 2023, we simply don’t know yet. I’m skeptical of visions in which falling-apart remnants like MSNBC make common cause with ex-Fox personalities to perpetuate some form of the old media model. On the other hand, although Newsmax and OANN have gotten big boosts in the last week, I’m not convinced they can achieve the same reach short of being available on all major-market TV delivery packages. Which they’re not.
One thing I am pretty sure of: viewers aren’t going to straggle back to Fox in decisive or recuperative numbers. The watershed is gushing out under us. This is it, the break with the information legacy of the 20th century. It’s not a vindictive attitude on the part of viewers; it’s a game-changing recognition that they can’t expect editorial independence from Fox now.
One way or another, how we assemble our information landscapes for the 2024 election will be something different.
A lot of people have suggested that Twitter, as rescued by Elon Musk from “regime”-domination, will be a central player. They may be right, to at least some extent. When all information has fallen under suspicion, format doesn’t matter as much as trust that the platform isn’t trying to sell you a package of Big Lies.
Lay in the popcorn. Fasten seat belts. Bumpy road ahead.
Feature image: U.S. Navy photo by Photographer’s Mate 2nd Class Felix Garza Jr. (Via Wikimedia Commons)
The Optimistic Conservative 
Yes. Tucker and Dan said what they thought, their exit from fox shows that that network now will simply parrot the company line. I have lost all trust in that network and won’t watch it again until the Murdochs sell to someone I can trust. At a steep discount.
hmmmm