deconstructing the administrative state

rhetorical claim: The long-standing critique on the right not just of the Obama and Clinton years but of the entire thrust of U.S. government since the Progressive Era and the New Deal. Critics of the administrative state — “the vast administrative apparatus that does so much to dictate the way we live now,” as Scott Johnson, a conservative lawyer and co-founder of the Power Line blog, put it in 2014 — see it as unconstitutional because regulatory agencies make and enforce rules based on authority they claim was illegitimately ceded by Congress. Deconstruction actually means dismantle or destroy.

rhetorical effect: best described by E.J. Dionne:

this is a war on a century’s worth of work to keep our air and water clean; our food, drugs and workplaces safe; the rights of employees protected; and the marketplace fair and unrigged. It’s one thing to make regulations more efficient and no more intrusive than necessary. It’s another to say that all the structures of democratic government designed to protect our citizens from the abuses of concentrated private power should be swept away.

It’s a very strange moment. Trump and Bannon are happy to expand the reach of the state when it comes to policing, immigration enforcement, executive-branch meddling in the work of investigative agencies, and the browbeating of individual companies that offend the president in one way or another. The parts of government they want to dismantle are those that stand on the side of citizens against powerful interests.

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ethnonationalism

rhetorical claim: “America First” means putting our economic and political interests ahead of the interests of the rest of the world

rhetorical effect: the end of multilateralism; the return to the zero-sum game of blood-and-soil xenophobia; narrow, tribal paranoia; brinksmanship and bellicosity. Creates an “us vs. them” rhetorical climate in which any internationalism is considered traitorous.

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freedom

rhetorical claim: according to Paul Ryan, “Freedom is the ability to buy what you want to fit what you need. Obamacare is Washington telling you what to buy regardless of your needs.”

rhetorical effect: reduces the definition of freedom to economic activity (is freedom more than “the ability to buy”?); assumes that  people know their health “needs” even before they need substantive insurance, which will not exist under Trumpcare; does not address what happens to people who lack the ability to “buy what they want”, despite tax credits or medical savings accounts; in essence confuses (or “replaces”) “affordable” with “cheap”. Freedom to Paul Ryan is the right to get fleeced by insurance companies.

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hate crime laws

rhetorical claim: hate crime laws are designed to divide America, criminalize the Bible, and protect gay pedophiles.

rhetorical effect: criminalizes LGBT and directs all nationalistic anger and hostility at the LGBT community. Will eventually lead to the reversal of all discrimination laws.

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globalist covenant

rhetorical claim: those opposed to Trump’s travel ban see immigration law as a globalist covenant, not a mater of national sovereignty. They would open the immigrant floodgates, thus greatly threatening national security.

rhetorical effect: makes any multilateral p olicy suspect because it isn’t part of Trump’s “America First” economic nationalism. Makes it seem that foreign powers are dictating US immigration policies and practices, which certainly is not the case. “Globalist” has become one of the great pejoratives of Trump’s administration.

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lawyer-centered lawsuits

rhetorical claim: frivolous class-action lawsuits have long served as a revenue source for litigious attorneys, whose main interests are paydays, not their clients’ well-being. Class action suits have clogged the court system and cost billions in lost productivity. It’s time to make these suits  fairer in order to maximize recoveries by deserving victims and weed out unmeritorious claims that would otherwise siphon resources away from innocent parties.

rhetorical effect: in the name of “fairness,” severe limitation on all class action lawsuits, as explained here

Critics warn that proposed legislation designed to “reform” class action lawsuits, appears to be engineered to block consumers from joining together to pursue claims against corporations and big businesses. 

The legislation, H.R. 985, was introduced by Republicans in the House of Representatives on February 10, and has been referred to the Judiciary Committee.

Known as the “Fairness in Class Action Litigation Act of 2017”, the bill seeks to add new requirements for plaintiffs attempting to bring a class action lawsuit, where they are seeking damages on behalf of a large number of individuals.

The proposed new requirements place the burden on plaintiffs to identify each class member, forbids class representatives from being a previous client of the class action lawyer, and prevents attorneys from being paid until all class members have been paid. In addition, each class member must prove they suffered the same “type and scope” of injury.

The bill would also require every class representative to describe the circumstances by which they were included in the complaint, and would force them to reveal any other class action lawsuits where they played a similar role.

The bill would not only affect class action lawsuits, but would impact multidistrict litigation (MDL) procedures as well, where similar lawsuits are consolidated for pretrial proceedings, yet are still considered individual claims. The bill would require every plaintiff to present evidence of injury before being allowed into the MDL, which may counter efforts by judges to streamline filing procedures and move the litigation forward efficiently.

Critics say that the bill’s measures are designed to be prohibitively restrictive, and will have a major effect on the ability of consumers to hold companies accountable for wrongdoing that results in damages for a number of individuals. For example, they note that proving the same type and scope of injury is almost impossible in discrimination cases and many similar claims. They also point out that prohibitions on being a previous client of the class lawyer more or less prevents class action lawsuits by investors, who may use the same attorney for investment lawsuits