The Mantra of Due Process

It’s not me, it’s you

Is it just me, or is just about everything that issues from the mouths of progressives these days a bunch of psychological projection?

Something tells me it’s not just me. Like a serial killer who constantly kills because he thinks everybody else is out to get him, progressives swear they must slay the republic in order to save it.

The shapeshifting sophistry this requires is a necessary but not sufficient condition for the progressive mind to sustain its culturally manifest disorders. Psychological displacement, the inversion of reality that comes with social disconnection, is another. So is self-loathing: To hate oneself is to also hate humanity, and it unlocks the box of terrors progressive souls see when they look into the mirror.

Displacement and self-hatred together allow the mind to distort the world, to shift blame for their sadness to the world around them, and that is what they see every morning in the reflective glass. In the mirror, progressives see only their oppressors and victimizers. In the mirror, they see no need to analyze or debate, only to assign blame to all those they see coming to hurt them. In the mirror, they need only their subjective experience, and its absolute authority.

To free themselves, they must lock the box of terrors and keep it locked. They must cover the mirror and never look into it. They must rule the oppressors with an iron fist, and they can only do so by transposing their own sins of tyranny onto those who actually oppose tyranny.

In the old days—you can call it pre-Trump but more accurately it’s pre-George W. Bush—the left could and did look inside and discover reasonable, actionable responses to the ills they saw around them. From the minimum wage to the death penalty, from pay equity to child care, liberals could see beyond their own misery—though it seems personal misery always lurked in the shadows of progressivism, waiting for its time—and make the case for a better tomorrow.

These days such debate has given way to sloganeering, the evidence of argument surrendering to the emptiness of victimization. Save Democracy! Abolish ICE! Tax the Millionaires and Billionaires! Gun violence is a public health emergency! Everything is a public health emergency! Except autism and the chemical poisoning of the environment!

Way back when, progressives used slogans like “If you’re not part of the solution, you’re part of the problem.” It might not have been true, but it was a binary call to action rooted in the real world. It spoke to real people. It gave them a choice.

Not so with slogans like “Stop Trans Genocide.” Not binary. Not rooted in reality. Not so much a call to action as a call to dark fantasy. Same for “The future IS trans.” That’s not a choice; it’s a threat.

You get the idea: Democrats never learn and so this past week we have the latest flavor of the month, coming soon to a George Soros-printed protest sign near you: Due Process Now!

This slogan says everything the left doesn’t want it to say. It acknowledges that due process is a legitimate civil right—something progressives seemed to have forgotten after January 6, 2021—and by asking for it now, they acknowledge they didn’t guarantee it before, as in during the Biden administration.

Suddenly, though, everything from the left is about due process. There was nary a peep about due process from the left back when Donald Trump was being hounded by a weaponized FBI and Department of Justice. Even before January, back in October 2019, Democratic Rep. Maxine Waters wasn’t too much worried about it when discussing Trump: "He needs to be imprisoned & placed in solitary confinement. But for now, impeachment is the imperative.”

There was not a tear shed over the lack of due process for January 6 defendants. The January 6 committee—their ringleaders now safely pardoned under an extreme exercise of Democratic “due process” in the waning days of the Biden administration—withheld footage for two years that could have helped exonerate some of those protesters. Here’s Chuck Schumer on that: “No leniency. No leniency for these people. They have the cameras all over. They have their pictures. No matter what part of the country they came from, we ought to go after them right now.”

Before Kyle Rittenhouse was acquitted, Rep. Hakeem Jeffries just wanted to get it all over with: “Lock up Kyle Rittenhouse and throw away the key.”

Now their sins have become our sins as they look into the mirror, and so it’s been a different story with the mild-mannered Maryland Man, Kilmar Abrego Garcia, the deported illegal immigrant whom the administration has tied to the violent gang MS-13.

Suddenly, the Democrats have due-process religion. It was a discouraging word that could be especially heard around Milwaukee these past few days, after federal agents put Milwaukee Circuit judge Hannah Dugan on ice for allegedly helping scurry an illegal immigrant out the jury door of the courtroom.

Clever.

Of course, Democrats screamed from the rafters, doing their best Greta Thunberg impressions with angry rhetorical flourishes and teen-style tantrums. How DARE the Trump administration arrest a sitting judge!?! Political persecution! They explicitly linked due process with false accusations that she had been arrested for some judicially-related conduct, rather than what she was really charged for, in effect, trying to drive the getaway car for a common criminal, only without a car.

Here’s how state Rep. Robin Vining (D-Wauwatosa) opined: “While we wait for more information, I am deeply concerned about what appears to be the undermining of the independent judiciary, the eroding of the right to due process, and the fear that is tearing through our communities.”

Never mind that Dugan’s arrest had nothing to do with any ruling she made, or any political opinion she expressed, or anything else while officially sitting on the bench. It had nothing to do with judicial independence and everything to do with allegedly obstructing justice by helping a man charged with domestic battery escape.

But for Democrats it was all about “due process,” though they seemed to forget about due process for those whom the man was charged with beating—30 times, according to the criminal complaint, and also punching a woman in the fight.

Oh, and due process was suddenly about state sovereignty for miffed liberals, their hatred for states’ rights notwithstanding. Here’s Milwaukee state Sen. Tim Carpenter: 

“All judge Hannah Dugan did was stand up to protect the American principal [sic] of due process.” 

And: “This brazen display of rogue federal power is incompatible with the sovereignty of our states and is another serious attack on our constitutional order by the Trump administration.”

Carpenter can’t spell ‘principle’ but even if he could he obviously doesn’t understand the principle of due process.

Ever woke, he says he’s introducing legislation to prevent arrests of people in “sensitive places” without first obtaining a judicial warrant. The only obvious reason to enact such a law is to avoid hurting the feelings of illegal immigrant criminals. Oh and to give them time to get away.

Carpenter doesn’t want criminal arrests in other sensitive places—like schools, churches, daycares, healthcare facilities. Apparently, due process means the state must create sanctuary zones, where wanted fugitives can have a lark about, or plan a getaway, while law enforcement obtains a warrant from a progressive urban judge.

What could go wrong?

Even this good fortune would not cure the malady of progressiveness. The next morning there would just be more demons romping around in the mirror, triggering more psychological projection.

If a progressive doesn’t get a good night’s sleep, for example, they’ll soon be out condemning Daylight Saving Time and all those who support it. If they can’t be happy, neither will you, and their sadness is all your fascistic fault anyway.

You can just see the slogan already: Darkness Now!

But seriously, folks ….

Every once in a while, the progressive slogan of the day actually reflects a more fundamental concern. While progressives run around yelling for due process for criminal immigrants and cartoonish judges, there are less glamorous though far more serious issues of due process being contested every day in the United States.

The vast majority of them have to do with the administrative state. For instance, there are the ongoing unconstitutional internal administrative law tribunals where many of those accused of running afoul of agency rules must first stand trial before heading to a real court, and in which the agency itself acts as law enforcement, judge, and jury.

Talk about lack of due process, but progressives see it as a matter of fairness. Who better to judge the validity of an arrest if not those who made the arrest? C’mon, get with the program.

There is still—believe it or not—civil asset forfeiture, where the government can seize any property it believes or asserts has been used in a crime. The property owners don’t have to be the alleged criminals, and no charges have to be filed or convictions obtained against anybody for the government to take and often keep the property.

And then there are the bait-and-switch, smoke-and-mirrors tactics of federal agencies used in myriad ways to thwart due process when it comes to rulemaking. Here’s a hot one on the table right now, thanks to Donald Trump’s crosshairs, and it is a little known tactic known as notice-and-comment. Notice-and-comment is the statutory requirement that agencies publish a notice of proposed rulemaking, give a window of time for the public to comment, including allowing online commentary, and then respond generally to comments before the rule takes effect.

Ah, the administrative state boasts, democracy and transparency in action! After all, according to the constitution of the administrative state, otherwise known as the Administrative Procedure Act (APA), notice-and-comment is the bedrock of procedural due process.

Except it’s not. On the front end, interest groups aligned with the bureaucracy unleash massive organized lobbying campaigns to deluge the bureaucracy on behalf of proposed rulemaking, not just manipulating the commentary but destroying its legitimacy. On the back end—agencies must also publish notice-and-comment periods when a rule is to be significantly modified or repealed—the feds often use those comment periods to bog down and try to block the repeal of rules they don’t want to be repealed.

Notice-and-comment sounds good, but in real life the federal bureaucracy has weaponized it and uses it to thwart the democratic will. I’ll take a look at that in a second, but first a look at why it’s hot-button right now.

Answer is, it’s hot button right now because Donald Trump and his administration recognize it for what it is—a disingenuous tool of the collectivist bureaucracy, another projection of due process that actually thwarts due process. And so they are trying to get rid of it, at least on the back end. That’s an important caveat, no matter what you hear in the corporate media: With its memorandum to agency heads directing the repeal of unlawful regulations, the administration is trying to jettison required notice-and-comment periods only for rule repeal and only for a certain class of rules, namely, those that are facially illegal.

While judge Hannah Dugan was running wild through the Milwaukee County Courthouse last week, wearing social justice on her sleeve in what turned out to be an Emperor’s new suit, the issue was being raised more quietly but far more seriously by another (actually) dangerous progressive in the state: attorney general Josh Kaul.

Kaul and 18 other attorneys general filed a lawsuit against the Trump administration, as everybody by now surely knows, over the U.S. Department of Education’s threat to withhold federal funding after those states’ education agencies refused to certify compliance with federal civil rights laws.

All this ensued for Wisconsin after state superintendent Jill Underly refused to make the certification.

The protesting states say the administration’s definition of Diversity, Equity and Inclusion (DEI), which it declares violative of federal law, is undefined and that its interpretations of civil-rights laws are noncompliant with federal procedural statutes. The complaint also contends that the administration does not specify what conduct it deems illegal.

For purposes of this article, the imperative element in the states’ lawsuit is that the administration’s interpretations of civil-rights laws are noncompliant with federal procedural statutes—i.e., the APA’s notice-and-comment requirements.

By not following the requirement, the lawsuit argues, the administration had attempted to impose a new basis for Title VI enforcement and withholding.

“There are no circumstances that would create good cause for [the education department] to forgo notice and comment in issuing the April 3 Agency Action,” the lawsuit states, and concludes that the administration’s compliance demand “is therefore unlawful and must be set aside.”

Well, Jeepers, do they have a case? For sure they do in the progressive lower courts. As for the Supreme Court, who knows?

What we do know is that the lack of notice-and-comment on the administration’s part was not some brazen act of defiance, nor was it overlooked legal error, but a broader part of Trump’s overall deregulatory strategy. As with the repeal of unlawful rules, the administration is concluding that the DPI’s refusal to certify compliance with federal law is illegal on its face, and so no notice-and-comment is required.

Getting rid of notice-and-comment—and getting it before the Supreme Court by way of this case or another—is part of the effort to slow down the bureaucrats’ resistance to deregulation.

More water for his beautiful hair

Trump launched his attack on notice-and-comment requirements on February 19, when he issued an executive order for all agency heads to initiate a review of all regulations for consistency with law and administration policy.

Among others things, the agency chiefs were directed to identify unconstitutional regulations and regulations that raised serious constitutional difficulties, such as exceeding the scope of the power vested in the federal government by the constitution; regulations based on unlawful delegations of legislative power; regulations implicating matters of social, political, or economic significance that were not authorized by clear statutory authority; and regulations imposing significant costs upon private parties that are not outweighed by public benefits.

Once identified, the order stated, the administration would develop a Unified Regulatory Agenda to rescind or modify the regulations.

The agency heads were also ordered to determine whether ongoing enforcement of any regulations identified in their regulatory review was compliant with law and administration policy, and, on a case-by-case basis and as appropriate and consistent with applicable law, direct the termination of all such enforcement proceedings that do not comply with the constitution, laws, or administration policy.

That order set liberal tongues a-wagging because they knew it set the stage for ending those regulations without going through notice-and-comment requirements. The executive order didn’t state that explicitly, but the kinds of regulations they were looking for spoke to the heart of the APA’s “good cause” exception to notice-and-comment: regulations that are "impracticable, unnecessary, or contrary to the public interest.” Courts have split over what that means, but exceptions have generally been lumped into several categories: emergencies; situations where prior notice would subvert the underlying statutory scheme or violate the constitution; and situations where Congress intends to waive the requirements.

As progressives feared, the stage was set and the administration took to it on April 9 with a seemingly minor —but not really—order striking the Obama administration’s definition of a shower head so as to accommodate more water pressure than federal regulations now allow.

On the personal scale, Trump said he needed more water for his hair: “I like to take a nice shower, take care of my beautiful hair. I have to stand in the shower for 15 minutes until it gets wet. Comes out drip, drip, drip. It’s ridiculous.”

More broadly, and presumably more to the point, the order said overregulation chokes the American economy and stifles personal freedom.

“A small but meaningful example is the Obama-Biden war on showers: Twice in the last 12 years, those administrations promulgated multi-thousand-word regulations defining the word ‘showerhead,’” the order stated. “To the extent any definition is necessary for this common piece of hardware, the Oxford English Dictionary defines ‘showerhead’ in one short sentence.”

Hence, the order stated, the 13,000-word showerhead regulation was repealed.

And then the president added this bombshell: “Notice and comment is unnecessary because I am ordering the repeal.”

On the very same day, Trump issued the aforementioned memorandum for the heads of executive departments and agencies directing the repeal of unlawful regulations. The gist: Because regulations that are unlawful can’t be regulations, there is no common sense need—or any other justification—for notice and comment.

Those review-and-repeal plans, Trump stated, had to prioritize the evaluation of each existing regulation’s lawfulness using 10 U.S. Supreme Court decisions, including Loper Bright Enterprises v. Raimondo, the 2024 case that ended Chevron deference of the courts to executive agencies.

If those regulations were illegal under those court decisions, Trump directed, then vamoose, they were gone:

Moreover, Trump continued, notice-and-comment proceedings were “unnecessary” where repeal was required as a matter of law to ensure consistency with a ruling of the United States Supreme Court: “Agencies thus have ample cause and the legal authority to immediately repeal unlawful regulations,” he stated.

Fear and loathing on the administrative trail (Apologies to Hunter S. Thompson)

Predictably, Trump’s move to dispense with notice-and-comment has been met with outrage by the corporate media and various pundits, who call it a quintessential example of his authoritarianism and desire to dispense with democracy.

Writing in Reason, which is often as unreasonable as it is reasonable, Jonathan Adler put it this way:

Public Citizen co-president Lisa Gilbert defaulted to the dictator argument: “President Trump is not a king. He cannot simply roll back regulations that protect the public without going through the legally required process. We will challenge this blatantly unlawful deregulatory effort at every step to ensure it doesn’t hurt workers, consumers and families.”

What Public Citizen is really trying to ensure is that the regulatory prerogatives of its bureaucratic allies aren’t hurt. In truth, Adler and Gilbert and their ilk miss two key points.

The first is that the original intent of the notice-and-comment period was never to open the process to a public referendum but to invite experts to give testimony about the way proposed rule language, along with its regulatory scheme, might comply, or not, with legislative intent.

It was intended simply to help the bureaucracy do its job in implementing a law.

With the growth of bureaucratic power, we long ago forgot that rules are not laws; they are (or should be) directives from Congress to write implementation standards for enacted legislation. The rule-writing process was thus never intended to become a public free-for-all in which one side lobbies for and against certain language, either to prevent an unlawful rule from being repealed, or to ensure that a new law actually subverts legislative intent.

Here’s the important point: Only when rules are viewed as lawmaking does public comment in the process become vital and substantive rather than peripheral and technical. When the bureaucracy stays in its rule-writing lane, the proper place for broad public input is during debate on the original legislation. There shouldn’t be a second kick at the can in the backwaters of the bureaucratic swamp, precisely because of the ability of special interests to hijack the relatively obscure notice-and-comment process.

Abuses of the procedural system have been recognized for a while now, so much so that in 2019 the staff of the Senate Permanent Subcommittee on Investigations issued a report, “Abuses of the Federal Notice-and-Comment rulemaking process.” Here’s how the staff report addressed the historical mission of the notice-and-comment period:

However, over time, the report continued, that’s just what happened. (I’ll add that it was thanks to activist courts and to Democratic-led Congresses, aided and abetted often enough by Republican adherents of globalism.) In 1941, the report observed, President Franklin Delano Roosevelt directed attorney general Frank Murphy to undertake an analysis of the various ways stakeholders in the 1930s and 1940s engaged with agencies during rulemaking. He reported that the notice-and-comment periods of the day included informal consultation processes; formal advisory commissions; testimony at adversarial and non-adversarial hearings; and investigations, the staff report relayed.

“The report did not contemplate mass letter-writing campaigns or the volume of emails and internet website submissions commenters send today,” the report stated.

Examples of special interest abuse are legion, the staff found. To cite but one example, in the fray over the FCC’s Restoring Internet Freedom rule, the FCC received nearly 24 million comments, causing its website to crash. And, no, this was not an excited citizenry eager to do their civic duty.

“Recent reports demonstrate that individuals are using false identities to submit comments,” the report stated. “… [W] hen rules receive a high number of comments, many of those comments are not unique, individual responses to the rule proposal. Many tend to be duplicates or near-duplicates of each other.”

In some cases, the staff reported, interest groups directly send agencies hundreds or thousands of form letters signed by their members.

So a technical process has been transformed into a public “due process” by progressive machination, and that leads to the second point: Trump is not only well within his authority to immediately axe unlawful rules, that’s part of his job. Illegal rules cannot stand, period. That’s why the APA includes the “good cause” exception to notice-and-comment in the first place.

And if someone contests the administration’s interpretation of a rule’s legality, they still have due process. It’s called recourse in the courts.

Writing in the Yale Journal on Regulation this past month, attorney Eli Nachmany wrote that Trump’s bid to accelerate repeals of unlawful agency rules would help ensure that executive agencies were pulled back into their jurisdictional lanes, where they need to be.

Far from Adler’s take, Nachmany believes the president’s strategy to challenge this overreach in court—and notice-and comment is such overreach—will succeed, as the administration likely believes as well.

“In particular,” he wrote, “the Court in Loper Bright put the executive branch on notice that courts would no longer defer to agencies’ regulatory interpretations of ambiguous statutes. Instead, a court will adopt the best interpretation of the statute when evaluating whether a regulation is lawful.”

Trump’s move is not just desirable but essential, Nachmany wrote.

“Regulations are binding, but enforcing unlawful regulations undermines the president’s constitutional duty to ensure faithful execution of the laws that Congress passes,” he wrote. “That solemn constitutional obligation should equip the president with ‘good cause’—consistent with the Administrative Procedure Act—to direct the quick repeal of these regulations on the grounds of unlawfulness.”

As Nachmany quoted the Supreme Court in 2021’s Alabama Association of Realtors v. Department of Health and Human Services (the eviction moratorium case), “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”

Following the law is any federal agency’s first priority, Nachmany correctly opined.

That is absolutely the case, but make no mistake: The left is screaming for due process for the very people who have for so long denied due process to others. They are just judges upholding the principle of due process, they protest. They are just bureaucrats nobly ensuring due process for the public, they assert.

But in their reckless rhetoric—and deep down they know this—the progressives are condemning not Trump, not his administration, and not the movement of the right. They are condemning themselves for their own sins.

Yet they beg not for mercy but for power, not for due process as an end in itself but as a mere means to manipulate for progressive progress. In the mirror each morning, if they dare to look, they see not justice for individuals, only a fierce face seeking the demolition of a democracy they once believed in.

To make it so, they chant the slogan of the week. This week it is the mantra of due process. Every week it is the mantra of fear and loathing.