Clay and Buck

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SCOTUS Rules on Remain in Mexico and EPA

30 Jun 2022

CLAY: We want to hit you with a couple of Supreme Court decisions that came down and the reaction to those. The EPA’s power has been severely curtailed, and this is part of a larger issue with agencies taking overwhelming sort of running room to be able to advance causes which the agency cares about, without any congressional oversight or authority. So, this sort of unregulated agency state has been reined in — in particular, the EPA and their ability to regulate carbon emissions — in a 6-3 decision that came down within the last couple of hours.

Also, that’s a positive for those of us out there who believe that democracy should actually matter and are concerned about the federal bureaucracy’s overreach. In a 5-4 decision, however, where John Roberts joined the majority, the Remain in Mexico plan, which had been overwhelmingly successful… Buck, you can speak to this pretty well because you’ve been to the border several times. Donald Trump solved much of the issues that were arising in terms of illegal immigration with a Remain in Mexico policy, which Joe Biden has repealed, and the Supreme Court, in a 5-4 decision, decided that the Biden administration did have the ability, due to the immigration powers residing inside of the executive branch, to overturn that Remain in Mexico policy of Donald Trump. Impact there from your perspective.

BUCK: The Alito dissent is pretty blistering on this one, and it’s when you go and read into it a little bit, what you find is so much of this is rooted in bad-faith execution of the laws by the executive branch. So, Alito starts out by writing, “In 2021, Border Patrol reported 1.7 million encounters with aliens in the borders.” Notice the Supreme Court uses the term “alien,” not “undocumented,” by the way, because that’s actually the federal code term.

“When it appears that one of these aliens is not admissible, may the government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question. The answer is ‘no.’ By law, if an alien is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” So the problem here… That’s from the Alito dissent.

Four justices, of course, going along with this, five. You had Kavanaugh and Roberts on the wrong side of this one. No surprise with Roberts. Kavanaugh also, honestly, a little… For all the, “Oh, my gosh!” Kavanaugh, he’s like Roberts with a little more hair. He’s really not that reliable. I’m just gonna say it. But you look at this, and what the core of the issue is the Biden administration is using its executive authority to ignore the intent of the law even if the actual verbiage of the law allows for this so that people can continue by the millions to scam our immigration system, enter illegally, and stay forever. Biden could stop this, Clay. DHS, Mayorkas running it, could stop it. They choose not to. That’s what’s at the core of the decision.

CLAY: And if I listened yesterday to our interview with Texas governor Greg Abbott, in addition to the saying that Joe Biden to blame for the 50-plus deaths that recently occurred in those smuggling deaths in the back of the truck, he also said that Mayorkas should be impeached by Republicans after the midterms based on his failure to protect the border. And this certainly is going to be a major topic in the state of Arizona where the direction of United States Senate may well turn. You’ve got Arizona, Nevada, Georgia, Wisconsin, Pennsylvania, all of these states with really important Senate elections where we’re tied 50-50.

Maybe there will be other states that end up in the mix too. But it’s a tougher, much tougher, Senate battleground than it is for the House. Almost a hundred billion percent right now, the House is going to be in Republican control. Speaker Pelosi is going to be gone. But the Senate, Buck, as we’ve talked about for a long time, Democrats are not having to defend as many seats. The seats, many of them that they are defending, are on much safer ground.

And so who controls the Senate in 2022 is going to really kind of be potentially on a razor’s edge. It just may come down to Arizona. We’re talking to Mark Brnovich here in a little bit, the attorney general of Arizona. I know there’s a battle going on for the Republican Senate nomination there to go against Mark Kelly. But this is the kind of issue in Arizona that could be incredibly important, and we’re gonna talk about this issue with him next hour.

BUCK: Democrats are for open borders. The Biden administration is making it so. It’s a clear decision. And if the American people don’t like it, they need to be held — these Democrats need to be held — to account. Just one more thing on the EPA, Clay, before we… I know we’re gonna talk about Biden and the filibuster, ending the filibuster, overturn the system, ’cause they care so much about our sacred democracy until they don’t get their way, then they want to take their ball home and no one else can play with it, right?

But Barack Obama on the EPA thing, he just tweets this stuff:

If we had a bad week in Europe, we could have a nuclear war with Russia. But Obama says the biggest challenge right now — people can’t afford their gas, the border’s wide open, the inflation’s the worst it’s been in 40 years, the biggest challenge to our future — is the theoretical rise of 0.5 degrees Celsius in global climate that we may have over the next 40 to 50 years. I’m crying already.

CLAY: You and I have talked about this on the show quite a bit. Neither of us loses an ounce, a moment’s sleep over the global warming. I just… It’s not even in my top 20 concerns right now.

BUCK: It’s a religious belief for libs who think they’re too smart for religion. It really is. This is their stand-in. This is why they say, “I’m gonna save the planet.” They’re not, actually, and you know what? I got news for them. We’re all gonna die.

CLAY: Wha! How about a way to end the hour, Sexton!


JESSICA SCHNEIDER: This is really a blow to the Biden administration and the EPA moving forward on two fronts and it impacts other agencies and how they’ll regulate. This is impacting the administration when it comes to the EPA saying that they can’t broadly regulate power plants, but then agencies as well, saying that if there are these major questions that have political implications, broad economic implications, that agencies basically won’t be given carte blanche to regulate here. So this is a really a major takedown of the administrative state here.

POPPY HARLOW: It is a major takedown of the administrative state.

BUCK: That’s fantastic, isn’t it? I just wanted you to hear that. That was CNN. They’re reacting to that Supreme Court decision with horror. “A takedown of the administrative state! Why don’t we have unelected bureaucrats sitting around in cubicles who can ruin lives and businesses with a stroke of a pen without any accountability and who clock out every day at 4:30 p.m. and could care less what their edicts do to the country?”

CLAY: (laughing)

BUCK: CNN’s really concerned about this. I just think it’s so funny having worked in the federal government and knowing what the mentality. That wasn’t the EPA. That was the CIA. But a lot of people work in federal government it’s like, “Yeah, I get paid the same either way, folks.” They really don’t care. I mean, you look at what the EPA’s done with its regulation of wetlands, for example. There are people that are getting bankrupted because the EPA decides that the swamp puddle in their backyard that’s a breeding ground for mosquitoes is a “wetland” that has to be protected. I mean, crazy stuff. The administrative state is one of the biggest threats —

CLAY: Yes.

BUCK: — maybe the biggest threat — to the freedom of the American people. So while we didn’t get… I thought we were gonna get a win today actually on Remain in Mexico. We did not. Frustrating. But we did get the win we were expecting the EPA and I just want to say it’s still been a really good run, Clay, with the Supreme Court. And this EPA thing, I know a lot of people think, “Ah, CO2 isn’t a pollutant. We breathe out CO2!” Think about this. This is what this is all rooted in. They’re trying to regulate CO2 levels and CO2 emissions out of power plants? This is crazy.

CLAY: Well, it also builds on, to your point, the constantly expanding powers of the administrative state. Take it away from the ruling today — and remember that the CDC put in place an eviction moratorium — the CDC! — and Joe Biden tried to argue in favor of it, and the Supreme Court struck it down. So all of these administrative states have grown so bloated and powerful because there has been very little pushback on what authority they have to implement policies as an unelected agency.

And sooner or later we needed to have some of those powers regulated, and that’s what we’ve started to see. There will be a lot of attention paid certainly to abortion. There will be a lot of attention paid to the gun decision. This was a very consequential Supreme Court term. But in terms of the long-range legacy of the administrative state, the CDC getting slapped down over the eviction moratorium — and now the EPA getting struck down over this regulatory authority — may be even more significant in the long term in terms of what is permissible and impermissible going forward.

BUCK: I just want to say, anytime we can do a victory dance in the end zone over the administrative state getting a slap-down, we should do it. Because the administrative state, folks? Oh! A lot of you have probably tangled with the bureaucrats of the apparatus before. Ruthless, destructive, and they just don’t care. They just don’t care, it’s the reality.

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