Month: April 2024

Too many in Washington are far less interested in protecting against foreign military threats than in pushing a separate agenda. The defense budget may hold steady, but accounting for inflation, even a small increase is actually a cut.

It’s a bad time to underfund national security. How defense dollars are used is vital.  While key, front-line needs are crucial, the Defense Department spends money on items such as placing solar panels on the Pentagon and pursuing nonexistent internal threats from its own service personnel.  Even as dangers lurk in Ukraine, the Middle East, the Indo-Pacific and on America’s own southern border, some of those entrusted with the defense of the nation are using the their budget to pursue political goals.

The most important element of our defense, the men and women who serve, is in deep trouble. In 2023, the military fell short of its recruitment goal by an astounding 41,000. A Military Times report stated that “One possibility [for missing recruitment goals]  that is increasingly resonating with veterans is that the military is too ‘woke.’ Sen. Tommy Tuberville, R-Ala., for example, is among a group of Republican senators who have repeatedly blamed recruiting problems on the Biden administration for trying to build a ‘woke Army.’

Key defense fundamentals, both conventional and strategic, are facing challenges.

An essential element of updating our nuclear deterrent is behind schedule. According to Rep. Mike Rogers, Chair of the House Armed Services Committee, the Sentinel land-based missile program, a key part of the modernization program, is not doing well.   “Sentinel is absolutely necessary for the future of our nuclear deterrent… The Department must ensure that Sentinel is ready in time to replace the current ICBMs before they reach the end of their lives. Failure is not an option.”

As an actual assault on U.S. interests becomes more likely than at any time since the Cold War, eyes that should be focused on the threat are looking elsewhere.

In an August address to West Point cadets, Deputy Defense Secretary Kathleen Hicks said “Climate change is a national security issue…”

A Heritage Foundation study reports that “The Department of Defense has taken on the most ambitious climate change policy agenda in its history. On January 27, 2021, President Joe Biden declared by executive order “that climate considerations shall be an essential element of United States foreign policy and national security” and directed that: ’The Secretary of Defense and the Chairman of the Joint Chiefs of Staff shall consider the security implications of climate change.’”

Our major adversary, China, grows stronger at sea as the U.S. falls behind. Beijing has built a navy larger than America’s. In fact, the U.S. Navy’s fleet is now smaller than it was in 2007.

 Mackenzie Eaglen, writing for the American Enterprise Institute reports that “The Navy has been making ends meet for now, but can only surge at this tempo for a limited period of time as deployment extensions continue to place additional wear and tear on overworked crews and aging ships. Furthermore, the fleet is set to slowly but steadily get smaller before it gets any bigger, as early retirements pile up and replacements slow….Battle force retirements have largely outpaced new procurement for the past two decades. Unstable funding and changing demands have left industry to cut down their shipbuilding operations to stay profitable, hollowing out domestic shipbuilding capacity and limiting our ability to build the fleet of the future. As former Chief of Naval Operations…Adm. Mike Gilday bluntly put it… ‘’The fleet is aging. As ships become older, they become more expensive and difficult to maintain. Ships are being tied in up in compounded maintenance delays, taking numerous ships off the line. Copious maintenance delays for the surface fleet resulted in less than 68 percent surface fleet ships deemed “mission-capable,” last year. Submarines face a similar situation, with just 63 percent of attack submarines available in the last year, further shrinking the true size of our Navy.”

While Democrats have engaged in diverting military funds and attention away from defense and towards environmental and woke goals, Republicans have made their share of mistakes, as well. The border is a key issue and Biden’s negligence continues to produce current harm and future threats. But the GOP’s leveraging withholding of support for Ukraine and Israel for border policy reform is a poor strategy, simply replacing one threat with another.

The current National Defense Authorization Act has been criticized as one that fails to address the threat from America’ “Pacing challenger,” China. A Heritage analysis points out that ‘Not long ago, House Republicans could have credibly argued that they were Capitol Hill’s toughest China hawks. Despite that track record, lame-duck Financial Services Committee Chairman Patrick McHenry (R-NC) and a few cronies were allowed to strip out virtually all of the important China-related national security provisions from this year’s National Defense Authorization Act (NDAA).”

Photo: Chinese frigate firing. (China Defense agency)

Iran’s missile attack on Israel, Russia’s invasion of Ukraine, China’s maritime assaults on the Philippines are not isolated issues. They are the direct result of the projection of weakness that began with the Obama Administration and reasserted by President Biden.

Moscow, Beijing, Tehran and Pyongyang are strengthening their armed forces and meeting closely to strengthen their ability to work as a unified front to engage in current and planned armed assaults against the United States

While the U.S. has protected its ships in the Mideast from attacks and worked with Israeli forces to shoot down the Iranian missiles and drones, its has taken little action to deflect further attacks other than pinpoint attacks on the antiship launch sites. Biden has informed Israel that America would not assist Netanyahu in any counterattack that would dissuade future assaults.  

The Axis partners perceived Biden’s feckless withdrawal from Afghanistan, his excessively hesitant provision of advanced weaponry to Ukraine, his reluctance to confront China despite numerous serious provocations as indications of an Administration that does not take military threats seriously, similar to the nonresponse by the Obama Administration’s failure to respond even diplomatically to Putin’s takeover of Crimea and Xi’s invasion of the Philippine Exclusive Economic Zone, which was condemned by the World Court at the Hague.

Regarding Ukraine, U.S. Representative Mike Rogers (R-AL), Chairman of the House Armed Services Committee has stated “Since the start of the war, President Biden’s Ukraine policy has been plagued by hesitation. Every major weapons system the United States has provided—from Stingers, to Abrams, to ATACMS —only came after serious Congressional pressure. And it usually arrived months late and in insufficient numbers.”

Of course, political wrangling tying Ukraine aide to attempts to get Biden to reverse his open border policy didn’t help matters.
 

Those nonactions, combined with the President’s inadequate defense budget proposals and the reality that the U.S. Army, Navy and Air Force will be smaller at the end of his first term than at the beginning of it have greenlighted aggression across the globe. In April, U.S. Senator Deb Fischer (R-Neb.), a senior member of the Senate Armed Services Committee, questioned Secretary of Defense Lloyd Austin and Chairman of the Joint Chiefs of Staff Charles Q. Brown, Jr., about the failures of President Biden’s proposed defense budget and the need to update America’s strategic posture, including by modernizing its nuclear deterrent.

Biden’s increased defense cooperation with several Pacific nations including Japan, Australia, New Zealand North Korea and the Philippines, as well as his approval of the admission of Sweden and Finland into NATO are all excellent moves. But it can also be seen as a way to push off America’s role as defender of the free world onto other nations.

Michael Rubin, writing for the American Enterprise Institute noted that “Aggressors perceive weakness when they see Biden. At issue is not only his physical frailty and declining mental acuity. Secretary of State Antony Blinken and National Security Advisor Jake Sullivan looked shell-shocked after Chinese Politburo Member Yang Jiechi and Foreign Minister Wang Yi dressed them down in a March 2021 summit in Anchorage. The two Biden aides came in overconfident and cocky and did not understand how much older Chinese officials would both perceive them and test them. The desperation with which Biden, Blinken, and Sullivan approached Iran nuclear negotiations and hostage-taking further solidified the perception of America’s enemies that Washington was profoundly unserious and that its redlines ephemeral.  Mishandling the Afghanistan withdrawal will haunt America for decades…Irredentists have taken notice. Not only does Iran believe it and its proxies Hamas and Hezbollah can act with impunity, but so do many other dictators.”

Seth Cropsey, in an article for The Hill explains that “…searches for a chimerical relaxation of tensions with China where none is to be found except in Washington’s accession to Beijing’s wishes. The efforts imply a fundamental misunderstanding of the purpose of statecraft. President Joe Biden and his closest advisers seem to believe that their role is to win a war of words, and that the hard edge of statecraft — military force — is an aberration, not a fundamental reality of international politics. The danger is that the Biden administration’s genteel convictions will smooth the nation’s path into a much larger and more dangerous contest of wills.”

If Biden fails to support Israel in its response to Iran, the “Axis of Evil” powers may perceive it to be a prominent example that the current White House has embraced a neo-pacifist philosophy that frees them to take hostile action.

Following the end of the first cold war, an unrealistic belief that “History was at an end” and that great power competition was a thing of the past led to a drastic impact not only on the existing U.S. military, but also on the industrial infrastructure required to supply it.

A newly released Defense Department report on the National Defense Industrial Strategy examines the problem.

The 59-page National Defense Industrial Strategy lays out long-term priorities that will supposedly guide DOD actions and resource prioritization in order to create a modern, resilient defense industrial ecosystem with the goal of deterring U.S. adversaries.

“We are implementing the National Defense Industrial Strategy now to ensure that our defense industrial base continues to both strengthen our national security here at home while reassuring and supporting allies and partners,” said Laura D. Taylor-Kale, assistant secretary of defense for industrial base policy, in unveiling the strategy from the Pentagon.

Taylor-Kale underscored the urgent need to shore up the defense industrial base as U.S. adversaries build up their military power to levels not seen since World War II. She noted China’s increasing threat to upend existing international order. She also highlighted the United States’ continued support for Ukraine as it defends itself from Russian aggression and for Israel in its fight against Hamas.”

 We excerpt key points:

 The so-called “peace dividend” and “procurement holiday” that followed saw dramatic cuts in military force structure, weapons production, and corresponding stockpiles of munitions and materials. Most notably, the traditional Defense Industrial Base (DIB) consolidated in the wake of the Secretary of Defense meeting with the major prime contractors and their suppliers in 1993 at what became known as the “Last Supper.”

Significantly, this post-Cold War period saw the wider contraction of America’s overall production capacity across many industries. Commercial manufacturing and related supply chains migrated overseas, including materials and components relevant to military needs. Over three decades the People’s Republic of China became the global industrial powerhouse in many key areas – from shipbuilding to critical minerals to microelectronics – that vastly exceeds the capacity of not just the United States, but the combined output of our key European and Asian allies as well.

The events of recent years dramatically exposed serious shortfalls in both domestic manufacturing and international supply chains. The COVID-19 crisis demonstrated America’s near wholesale dependency on other nations for many products and materials crucial to modern life.4 Longstanding mobilization authorities, such as the Defense Production Act, were needed in the first months of the crisis to prevent expected shortages in medical equipment and other crucial items.

The Russian Federation’s full-scale invasion of Ukraine in 2022, followed the next year by attacks by Hamas on Israel, uncovered a different set of industrial demands and corresponding risks. The U.S. defense industry has been called on to surge production of military equipment in large quantities, especially munitions – from 155mm military artillery shells, a staple of armies since the First World War, to the most sophisticated missile defense systems.

The National Defense Industrial Strategy (NDIS) – the first of its type to be produced by the Department of Defense – provides a path that builds on recent progress while remedying remaining gaps and potential shortfalls. This NDIS recognizes that America’s economic security and national security are mutually reinforcing and, ultimately, the nation’s military strength depends in part on our overall economic strength.

How do we prioritize and optimize defense needs in a competitive landscape undergirded by geopolitical, economic, and technological tensions? Tradeoffs typically occur between cost, speed, and scale. However, the lessons learned since the “Last Supper” and highlighted by current acute threats illustrate that the DoD needs to move aggressively toward innovative, next-generation capabilities while continuing to upgrade and produce, in significant volumes, conventional weapons systems already in the force.

As such, the DoD seeks to be more adaptable to changes in the competitive landscape. We must optimize for dynamic production and capabilities. In addition to the traditional defense industrial base, we will accelerate the growth of a more diverse, dynamic, and resilient modern defense industrial ecosystem.

To date, the federal government has enacted industrial policies that guide the NDIS. This includes a range of Executive Branch policy actions. For instance, Executive Order (EO) 13806 called for policies that promote a vibrant domestic manufacturing center, a vibrant DIB, and resilient domestic supply chains. More recently, EO 14017 called for action to strengthen America’s supply chains. Additionally, EO 14028 emphasized the need for the private sector to recognize and continuously adapt to the constantly evolving cyber-threat to ensure products are built and operate effectively, while ensuring that critical information and technologies are protected.

In the international capital and trade arena, EO 14083 elaborates and expands on the existing list of factors that the Committee on Foreign Investment in the United States (CFIUS) considers when reviewing transactions for national security risks. Complementing this CFIUS reform, EO 14105 regulates outbound investments in which United States capital is being invested in certain entities within certain countries of concern, and it provides a mechanism to limit U.S. investment in adversarial defense economies, limiting those adversaries’ ability to compete with the U.S. DIB.

The DoD has taken action to support these Executive Orders. Since the supply chain-focused executive order (EO 14017) was issued in February 2021, the DoD has obligated over $893 million using the Defense Production Act for investments in five critical sectors (kinetic capabilities, microelectronics, energy storage and batteries, strategic and critical materials, and castings and forgings). The DoD will address technological challenges with forward-looking initiatives such as the Industrial Base Analysis and Sustainment (IBAS) program aimed at maintaining the health of vulnerable DoD suppliers and capabilities.

Additionally, the DoD maintains the Manufacturing Technology program (ManTech), a DoD investment portfolio that seeks to develop advanced manufacturing processes, techniques, and equipment to develop, produce, and sustain weapon systems, and Additive Manufacturing (AM) Forward, a voluntary compact among large manufacturers to help small suppliers increase use of additive manufacturing. Increased investment in artificial intelligence-powered predictive capability will help the DoD accomplish these technological challenges.

Guided by this first-of-its-kind strategy, the DoD will develop more resilient and innovative supply chains, invest in small- and medium-sized businesses, and strengthen and grow American innovation and manufacturing ecosystems across both the private sector and the governmentowned organic industrial base (OIB). DPA, IBAS, ManTech, AM Forward, and similar efforts will bolster and expand America’s ability to innovate and produce the warfighting capabilities at a speed and scale that will help guarantee the ability to fight and win in any conflict.

We need to shift from policies rooted in the 20th century that supported a narrow defense industrial base, capitalized on the DoD as the monopsony power, and promoted either/or tradeoffs between cost, speed, and scale. We need to build a modernized industrial ecosystem that includes the traditional defense contractors – the DIB primes and sub-tier defense contractors who provide equipment and services – and also includes innovative new technology developers; academia; research labs; technical centers; manufacturing centers of excellence; service providers; government-owned, contractor-operated (GOCO) facilities; and finance streams, especially private equity and venture capital. As we build a modernized industrial ecosystem, we remain mindful of the environment in which private industry operates and look to work with them to tackle adverse impacts which can manifest during change and modernization.

The DoD seeks to catalyze generational rather than incremental change in order for our industrial base to meet the strategic moment. The contraction of the traditional DIB (both commercial and organic) was a generation-long process and it will require another generation to modernize the DIB. The DoD cannot address the current challenges alone. Defense production and services are part of a vast, diverse, and global ecosystem that draws from technology and manufacturing sectors.

Accordingly, building a more robust, modernized defense industrial ecosystem will require a dynamic effort across the U.S. government to create the legal and policy conditions that allow new entrants into the defense production and services community. We must solicit entrants of all types: large and small, domestic, and foreign, and those with no previous relationship to the DoD or defense production. This will require reinvigoration and the development of new dialogues and relationships. The DoD must consider the impact of government policies and decisions on industry, just as its adherents must appreciate their critical role in providing for the defense of the nation and consider the impact of their business practices on national security.

Photo: WWII poster emphasizing the defense industrial base

The 2024 campaign season is in full swing. Missing in much of the rhetoric is the deteriorating fortunes of the nation. Despite massive increases in spending and a stratospheric increase in the national debt, key indicators show that the U.S. has gotten worse in key areas.  The challenge affects both the nation as a whole, and the lives of individual citizens.

The dilemma has been noted by commentators on the right, left, and center.

Last June, the Atlantic noted that “In the past 50 years, despite overall economic growth, the quality of life for most Americans has declined.” 

The American Enterprise Institute points out that “Economic freedom peaked by 2000 and stagnated and declined in the early 21st century.”

 Nicholas Eberstadt, writing for Commentary in 2017 said that “…things have been going badly wrong in America since the beginning of the 21st century. It turns out that the year 2000 marks a grim historical milestone of sorts for our nation. For whatever reasons, the Great American Escalator, which had lifted successive generations of Americans to ever higher standards of living and levels of social well-being, broke down around then—and broke down very badly. The warning lights have been flashing, and the klaxons sounding, for more than a decade and a half. But our pundits and prognosticators and professors and policymakers, ensconced as they generally are deep within the bubble, were for the most part too distant from the distress of the general population to see or hear it.”

In 2008, when then-candidate Barack Obama promised to “fundamentally transform” America, the national debt was $10 trillion. It is now over $34 trillion. Our infrastructure has not improved, our armed forces are smaller, social security’s funds continue to dwindle.

 This has all occurred even though tax revenue has risen. In FY 2008, government revenue totaled $2.7 trillion. In 2023, the federal government collected $4.44 trillion. The Fed budget in 2008 was $2.983 trillion. In 2024 it was $6.5 trillion.

There has been little to show for all that extra spending.

In 2008, The United States was the world’s leading (some said only) superpower. Now, it is under siege by Russia, China, and Iran. Russia has a larger nuclear force, and China has a larger navy. There were 1,540,000 military servicemembers protecting the nation in 2008.  In 2024, that figure has been reduced to 1,284,500.   In 2008, Ukraine was whole. Now, Crimea has been taken over by Russia and the rest of the nation is under siege.

America’s manufacturing industry has been declining since before the year 2000. The Mckinsey Global Institute noted in 2021 that “…over the past two decades—[America’s] global share [of manufacturing] has fallen from 25 to 17 percent since 1997, with the net loss of 4.6 million jobs.”

The average price of a basic food basket in the United States amounted to just over 210 U.S. dollars as of January 2023, increasing by nearly 9 percent from the previous year. Back in 2019, the average value of a food basket was around 156.5 U.S. dollars.

Race relations have taken a turn for the worse.  A Pew research poll in 2008 found that “found that whites, blacks and Hispanics all have generally favorable opinions of one another and all tend to see inter-group relations in a more positive than negative light.” Jared Gans, writing in The Hill, reported in 2023 that “A Washington Post-Ipsos poll … showed that 51 percent of Black respondents said they expect racism will get worse, while 37 percent said they expect it will stay about the same. Only 11 percent said it will get better. 

The unauthorized illegal population in 2008 was about 11.6 million.   In 2023, it was 49.5 million

So far, the precipitous decline in the nation’s condition has not been highlighted.  The presidential candidates must do so.

Illustration: Pixabay

Special Prosecutor Robert Hur’s report, dated February 5, 2024, states clearly on its first page, that “[o]ur investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”  However, “we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt… we decline prosecution of Mr. Biden.”

There are a variety of legal considerations for the non-prosecution decision addressed in the Hur Report that deserve further analysis.  However, the most glaring reason for the recommendation is today’s topic; “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him-by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness.”

Hur does not deny that there is evidence for Biden’s willful retention of classified documents.  In Chapter 11 of his Report, Hur states that “[i]n a recorded conversation on February 16, 2017, at Mr. Biden’s rental home in Virginia, Mr. Biden told Mark Zwonitzer (a writer working with Biden) that Mr. Biden had ‘just found all the classified stuff downstairs.’ According to what Mr. Biden told Zwonitzer, ‘all the classified stuff’ related to President Obama’s 2009 decision to surge American troops to Afghanistan, and to a pivotal moment when Mr. Biden sent President Obama his handwritten Thanksgiving memo opposing the troop surge. Photos of the Virginia home show that the lowest level ‘downstairs’-where Mr. Biden told Zwonitzer he had ‘just found all the classified stuff’-included rooms that Mr. Biden used as work and storage spaces.” (Citations omitted.)

Hur finds that “Mr. Biden had a strong motive to keep the classified Afghanistan documents. He believed President Obama’s 2009 troop surge was a mistake on par with Vietnam. He wanted the record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made-that his judgment was sound when it mattered most.”  (Citations omitted.)

“Nevertheless,” Hur concludes, “for the reasons below, we believe this evidence is not strong enough to establish Mr. Biden’s guilt beyond a reasonable doubt.”

Hur then examines in detail a series of defenses Biden could assert, including, incredibly, “Mr. Biden could have found the classified Afghanistan documents at the Virginia home in 2017 and then forgotten about them soon after.”

In 30 years of legal practice, I do not recall a single case where a defendant was able to win an acquittal by claiming he had forgotten he was breaking the law.  But maybe Robert Hur’s experience is different.

In support of the “forgot about it” defense, Hur details his basis for believing this potential defense:  “Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries. In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 – when did I stop being Vice President?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still Vice President?’). He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he ‘had a real difference’ of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.”

In other words, it’s perfectly reasonable to expect that someone who can’t remember when he was Vice President, or when his own son died, would not remember that he was storing classified documents that had once been important enough for Biden to maintain in his possession.

Biden himself, as well as his supporters, have been vociferous in their complaints regarding this particular finding.   At a Press Conference held immediately after the release of the Hur Report, “a reporter who raised the issue of Hur’s assertion a jury would find the president to be a ‘well-meaning, elderly man with a poor memory,’ Mr. Biden responded, ‘I’m well-meaning and I’m an elderly man and I know what the hell I’m doing. I’ve been president and I put this country back on its feet. I don’t need his recommendation.’ Mr. Biden said his memory is ‘fine,’ and ‘has not gotten worse’ over the course of his presidency.” Yet, during that same Press Conference, Biden mixed up the President of Egypt with the President of Mexico, and could not recall the name of the Church where he got a rosary in honor of his son, Beau.  These memory lapses were particularly poignant, as it came while Biden was defending his ability to remember. 

According to former US Attorney General Eric Holder, “Special Counsel Hur report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing [Justice Department] traditions,” an assessment echoed by Neal Katyal, a former acting solicitor general during the Obama administration, who said, “Totally gratuitous. After all, earlier in the report, it says Biden has all sorts of innocent explanations for his behavior.”  Yet, Hur’s findings are hardly extraneous or gratuitous – they serve as an explanation for why a jury might not believe that Joe Biden “willingly” retained classified information.  A weak explanation for a very anemic defense, but an explanation nonetheless.

All of this might be forgivable and almost comical on a particular level – if the man with significant memory loss was not the current President of the United States.

“I’ve been saying since he was candidate Joe Biden: This man does not have the cognitive wherewithal or ability to be our head of state,” according to “Rep. Ronny Jackson (R-Texas), a physician to both former Presidents Barack Obama and Donald Trump and a member of the White House Medical Unit under President George W. Bush…’I’m not making a diagnosis. And I’m not saying the guy has Alzheimer’s or multi-infarct dementia or Parkinson’s or anything else,’ he clarified. ‘This guy has cognitive issues related to his age: He shuffles when he walks, he slurs his speech, he forgets where he’s at, what he’s doing, he can’t remember names, he can’t remember dates – that is not someone that should be in control of the nuclear codes in this country and controlling our fate overseas.'”  

To date, Joe Biden has rejected all calls for cognitive testing.   But make no mistake – this remains a significant issue, of great concern to the majority of voters regardless of their party affiliation.

As noted by NBC News, “[i]t was tough enough for Biden to reassure voters about his health before Hur’s report hit like a thunderclap…prompting members of his own party to question whether he could remain the nominee in November. ‘It’s a nightmare,’ said a Democratic House member who asked to speak anonymously to provide a frank assessment, adding that ‘it weakens President Biden electorally…[f]or Democrats, we’re in a grim situation.’” 

Judge John Wilson (ret.) served on the bench in NYC

We met at nine, we met at eight, I was on time, no, you were late Ah, yes, I remember it well…Maurice Chavalier, Hermione Gingold, I Remember It Well

The classic duet quoted above is charming, as a woman continually corrects the faulty memory of her lover with tenderness and affection.  But less than charming is the declining mental health of President Joe Biden, which is obvious to anyone with eyes to see him fall, and ears to hear him shout in anger and forget what he was saying.  Obvious, that is – unless you’re a Democrat.

Homeland Security Secretary Alejandro Mayorkas (called) Biden “sharp”, according to NBC News. “’The most difficult part about a meeting with President Biden is preparing for it because he is sharp, intensely probing and detail-oriented and focused,’ Mayorkas told Meet the Press.”  The Hill reports these comments from former House Speaker Nancy Pelosi; “I’ve worked with the president for a long time…and he knows … I mean, he’s always on the ball…[a]nyone who would think that they’re at some advantage because of his age thinks that at their peril, because he’s very sharp.” 

Then there are the assessments of Biden’s allies in Congress; “Democrat Sen. Richard Blumenthal of Connecticut, told DailyMail.com that Biden ‘is as sharp as ever.’  ‘The president is doing an incredible job, and I look forward to making sure he gets re-elected in 2024,’ Sen. RaphaelWarnock, D-Ga., added.  Another Democrat ElizabethWarren agreed, saying said. ‘I know his ability to do the job because he is doing the job. He is delivering every single day for the American people.’ ” 

While Warnock and Warren do not directly address Biden’s mental abilities in their comments, the implication is the same as the more direct statements of Mayorkas, Pelosi  and Blumenthal – don’t believe your lying eyes! 

Meanwhile, the American public displays increasing  recognition that the Emperor has no clothes.  “Three-quarters of voters, including half of Democrats, say they have concerns about President Joe Biden’s mental and physical health, according to the latest national NBC News poll... [i]n the new poll, a combined 76% of voters say they have major concerns (62%) or moderate concerns (14%) about Biden’s not having the necessary mental and physical health to be president for a second term…[b]y party, 95% of Republican voters, 81% of independents and 54% of Democrats say they have major or moderate concerns about Biden’s fitness for a second term.” 

As if these poll results were not bad enough news for Biden, along comes the long-anticipated report from Special Prosecutor Robert Hur to throw gasoline on the fire.

You may recall from our article published at usagovpolicy.com in January of 2023, Biden’s Garage of Secrets,   not long after the raid on Mar a Lago and the FBI’s seizure of classified documents from the home of former President Donald Trump, current President Biden’s attorney’s revealed that classified documents were also recovered from Joe Biden’s Wilmington, DE home and the Penn Biden Center at the University of Pennsylvania.  These documents dated back to the time before Biden was President, some dating back to his time as a Senator.

As we describe in Chapter 4 of my new book, The Making of a Martyr: An Analysis of the Indictments of Donald Trump,   “On January 12, 2023, Attorney General Merrick Garland appointed Special Counsel Robert Hur, to investigate ‘the possible unauthorized removal and retention of classified documents or other records discovered at the Penn Biden Center for Diplomacy and Global Engagement and the Wilmington, Delaware, private residence of President Joseph R. Biden Jr.’   Hur is the former US Attorney for Maryland, and according to the Associated Press, ‘Hur was principal associate attorney general under (Rod) Rosenstein at the Justice Department. Hur is also a former partner at the Washington law firm King & Spalding, where FBI Director Christopher Wray was once also a partner.’  

We also noted that “[i]t wasn’t until October of 2023 that Hur interviewed the current President in person, a move which PBS believes ‘could signal that the special counsel investigation is nearing its conclusion.’In fact, according to former federal prosecutor Jonathan Turley, ‘[u]nlike his counterpart, Special Counsel Jack Smith, who has been aggressively prosecuting former president Donald Trump, Hur has virtually disappeared since his appointment to investigate President Joe Biden.'” 

Judge Wilson’s (ret.) Report concludes tomorrow

For many years, conservatives and “free market” economists have complained about the ever-expanding “Administrative State.” At the same time, those on the left have relied more and more on bureaucrats at various federal agencies to issue more and more regulations and restrictions on a variety of private industries, including oil refining, gas production, agriculture, and even fishing, usually in the name of increased safety or to control prices.

Since the early 1980’s, one tool used by a variety of government agencies responsible for the ever-expanding web of regulations is the US Supreme Court decision in Chevron USA v. Natural Resource Def. Council, 467 US 837 (1984).  Briefly stated, the case involved a challenge to regulations promulgated by the Environmental Protection Agency regarding air pollution controls mandated for manufacturing and oil refining plants and factories. In Chevron, the Court held that “[a]n agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Policy arguments…should be addressed to legislators or administrators, not to judges. The EPA’s interpretation of the statute here represents a reasonable accommodation of manifestly competing interests and is entitled to deference.”

The rationale for the Court’s decision was explained in this way; “[T]he Administrator’s interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies”, the Court wrote in Chevron. “Judges are not experts in the field, and are not part of either political branch of the Government…[w]hen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges-who have no constituency-have a duty to respect legitimate policy choices made by those who do.” (Citations omitted.)

For the past 40 years, this “Chevron deference” has been granted to a variety of determinations made by every regulatory agency of the federal government.  To paraphrase the substance of this deference, “they’re the experts – they know better.”

Recently, the Supreme Court has heard arguments in two cases which give the Court the chance to revisit the Chevron deference, and perhaps modify or overturn that standard.  But to understand this rule and the necessity of reversing this precedent, a review of history is necessary.

The ascension of the modern bureaucratic state was documented by the eminent Political Scientist, James Q. Wilson.   “There was no dispute in Congress that there should be executive departments, headed by single appointed officials, and, of course, the Constitution specified that these would be appointed by the President with the advice and consent of the Senate”, Wilson wrote in The Rise of the Bureaucratic State.  “The original departments were small and had limited duties. The State Department, the first to be created, had but nine employees in addition to the Secretary. The War Department did not reach 80 civilian employees until 1801; it commanded only a few thousand soldiers. Only the Treasury Department had substantial powers—it collected taxes, managed the public debt, ran the national bank, conducted land surveys, and purchased military supplies. Because of this, Congress gave the closest scrutiny to its structure and its activities.” 

According to Wilson, “[a]fter 1861, the growth in the federal administrative system …reflected a new (or at least greater) emphasis on the enlargement of the scope of government. Between 1861 and 1901, over 200,000 civilian employees were added to the federal service…[b]y 1901 there were over 44,000 civilian defense employees, mostly workers in government-owned arsenals and shipyards. But even these could account for less than one fourth of the increase in employment during the preceding 40 years.” 

In the 1930’s, “[t]he New Deal was perhaps the high water mark…[n]ot only did various sectors of society, notably agriculture, begin receiving massive subsidies, but the government proposed, through the National Industrial Recovery Act (NRA), to cloak with public power a vast number of industrial groupings and trade associations so that they might control production and prices in ways that would end the depression. The NRA’s Blue Eagle fell before the Supreme Court—the wholesale delegation of public power to private interests was declared unconstitutional. But the piecemeal delegation was not, as the continued growth of specialized promotional agencies attests.”

Wilson’s analysis continued; “For many decades, the Supreme Court denied to the federal government any general ‘police power’ over occupations and businesses, and thus most such regulation occurred at the state level …(however), [w]hat clearly was within the regulatory province of the federal government was interstate commerce, and thus it is not surprising that the first major federal regulatory body should be the Interstate Commerce Commission (ICC), created in 1887… the ICC…became the principal example of federal discretionary authority.”

Wilson then detailed the current state of these ever-growing regulatory agencies; “Either in applying a vague but broad rule (‘the public interest, convenience, and necessity’) or in enforcing a clear and strict standard, the regulatory agency will tend to broaden the range and domain of its authority, to lag behind technological and economic change, to resist deregulation, to stimulate corruption, and to contribute to the bureaucratization of private institutions…[r]egulatory agencies are slow to respond to change for the same reason all organizations with an assured existence are slow: There is no incentive to respond. Furthermore, the requirements of due process and of political conciliation will make any response time-consuming.”

Most important to our analysis of the challenge which has been brought to the Chevron deference, Wilson presaged the basis for the current controversy; “The operation of regulatory bureaus may tend to bureaucratize the private sector. The costs of conforming to many regulations can be met most easily—often, only—by large firms and institutions with specialized bureaucracies of their own. Smaller firms and groups often must choose between unacceptably high overhead costs, violating the law, or going out of business. A small bakery producing limited runs of a high-quality product literally may not be able to meet the safety and health standards for equipment, or to keep track of and administer fairly its obligations to its two employees; but unless the bakery is willing to break the law, it must sell out to a big bakery that can afford to do these things, but may not be inclined to make and sell good bread.” (Emphasis in original.)

The application of the Chevron deference over the past 40 years has only encouraged this trend towards more and more regulations and bureaucratic rule-making, all in the name of vaguely worded policy objectives.  As Wilson described, federal agencies have promulgated so many rules, a small business has no chance of fully complying with these usually costly instructions, and turn a profit.

But this state of affairs is far from hopeless.

As described by Reuters,  “[I]n Loper Bright Enterprises v. Raimondo…petitioners challenge regulations of the National Marine Fisheries Service (NMFS) which impose a per diem fee on vessels to pay for the individual they are required to carry on trips to monitor compliance with fisheries rules under the Magnuson-Stevens Act (MSA).”  This case was consolidated with Relentless, Inc. v. Department of Commerce, [also] a challenge to the per diem fees imposed by the NMFS on vessels to pay the cost of the observers the NMFS sends out to monitor the health of fisheries.” 

From the oral arguments held on January 17 of this year, it is obvious that the Supreme Court intends on addressing the continued application of the Chevron deference.  As the discussion was described in the SCOTUSblog, “[t]he fishing companies (asked) the justices to weigh in on the rule itself but also to overrule Chevron. Roman Martinez, representing one group of fishing vessels, told the justices that…[u]nder the Chevron doctrine…even if all nine Supreme Court justices agree that the fishing vessels’ interpretation of federal fishing law is better than the NMFS’s interpretation, they would still be required to defer to the agency’s interpretation as long as it was reasonable. Such a result, Martinez concluded, is ‘not consistent with the rule of law.’”  

Justice Neil Gorsuch made an argument that echoed the concerns expressed by James Q. Wilson. “he was less concerned about businesses subject to changing regulations, observing that the companies ‘can take care of themselves’ and seek relief through the political process. Instead, Gorsuch pointed to less powerful individuals who may be affected by the actions of federal agencies, such as immigrants, veterans seeking benefits, and Social Security claimants. In those cases, Gorsuch stressed, Chevron virtually always works for the agencies and against the ‘little guy.’”

Indeed.  Justice Gorsuch has also expressed concerns regarding federal agency overreach in the past.  In his concurring opinion in National Federation of Independent Business v. Department of Labor,    (where the Court found that the Department’s Occupational Safety and Health Administration [OSHA] did not have the authority to mandate that private employers with more than 100 employees must require their employees to receive the Covid-19 vaccine),   Gorsuch wrote “the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs – with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans…they must at least be able to trace that power to a clear grant of authority from Congress.”

As Justice Gorsuch reasoned, “[s]ometimes lawmakers may be tempted to delegate power to agencies to ‘reduc[e] the degree to which they will be held accountable for unpopular actions’…[i]f Congress could hand off all its legislative powers to unelected agency officials, it ‘would dash the whole scheme’ of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives.” (Citations omitted).

Herein lies the heart of the issue. 

Over the years, Congress has delegated increased authority to a plethora of federal agencies, each more specific in its focus and jurisdiction.  Many of these bureaus address technical and specialized issues beyond the expertise of Members of Congress and Judges, necessitating some level of trust in their judgments.  However, the “hands off” approach taken by the Courts since the inception of the Chevron deference has allowed these bureaucracies to establish rules that effectively, if not always intentionally, favor large corporations, who are the only ones who can afford to follow these ever-expanding regulations.  As James Q. Wilson put it, a small bakery cannot compete with a large bakery, or as Justice Gorsuch states, federal agencies end up working against the “little guy.”

The small fisheries who are challenging the National Marine Fisheries Service cannot afford the cost of carrying a government compliance officer on their ships, while larger fishing companies can easily bear this cost.  If the Courts continue to apply the Chevron deference, the judges would have no choice but to endorse the actions of the NMFS, and drive small scale fishermen out of business.

Further, if the Supreme Court continues to follow the Chevron deference, Congress will be encouraged to continue ceding their powers to unelected and increasingly unaccountable bureaucrats.

Perhaps the Court will not overturn the Chevron deference it its entirety.  But it is certain that a major modification of this doctrine is on the way.

Judge John Wilson (ret.) served on the bench in NYC.

Illustration: Pixabay