Supreme Court limits EPA’s power to cut emissions
bbc.com
bbc.com
The very first words of the opinion, on p. 2, make clear that the legal issue before the Court is very different: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
The Clean Air Act does not purport to give the EPA blanket regulatory authority over anything involving emissions into the air. It has detailed provisions focused on reducing the amount of toxic pollutants, in particular through the use of control (scrubbing) technologies. This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.). The Court decided that the statute did not confer on the EPA the power to do that. The relevant discussion begins on page 16.
This decision gives legs to something that has been called the "major questions doctrine." The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem. As applied here, that means that the EPA can't rely on authority delegated by Congress to, for example, tell coal plants what kind of scrubbers they have to use, to tackle climate change. pp. 17-19.
Also, Congress is not as ineffective and hyperpartisan as you think. It's only on issues that have public attention that they act this way. When nobody is looking they move quickly and decisively.
Less than 10% of congressional districts this year will be competitive (defined as the most recent presidential election margin was within 10 percentage points). Only 41 seats!
I haven’t really seen a realistic plan to do it though.
Even in my home country, which is european country with proportional system and no gerrymandering, such deviation is higher (< 2%) due to rounding effects.
Gerrymandering is main issue in (some) state elections (e.g. Wisconsin 2018 is egregious example), not federal elections.
The bigger problem is that it incentivizes partisanship and extremist views in uncompetitive districts because the representative is effectively decided in the party’s primary election, not the general election which has higher turnout and a more representative electorate.
Also the fact that 90%+ of congressional seats are safe except for the occasional primary opponent discourages accountability. Our districts are so distorted, they make no geographic sense. And it means a large percentage of our population is permanently disenfranchised, which dampens voter participation. It really is one of the biggest structural problems of our democracy right now.
For example, it took years to create a constitution, then more years for a bill of rights. There was a lot of federalist vs anti-federalist debate. Then things like slavery, segregation, etc. I mean, we fought a civil war. How much more partisan can it get than that?
On a positive reading, the Court is now saying states have the right to choose these issues for themselves. There are means in the constitution for overruling a minority of states, that is by passing a constitutional amendment. By allowing and even encouraging the Court to make these decisions, Congress has built up a democratic deficit which has exploded in its face.
On a negative reading, sadly, the Court is just as partisan now but in the other direction. Thus the deficit won’t go away.
It doesn't help that taking action on matters of national importance is inherently difficult in a Federalist government.
without taking sides on this attorney gang, it seems to be like a bunch of professional boxers and others here are mad because they cannot fight. I do not want to fight lawyers, but calling them a conspiracy, when they specifically engage and practice debate professionally, is sort of pathetic honestly.
Debating professionally precludes conspiracy? What if a high-school debate club decides to rob a bank?
They are supposed to be enforcing and upholding the laws that congress enacts.
So, cut the hyperbole. Partisanship has always been a political reality. The EPA is capped to the powers that Congress gave it, and does not have the autonomy to expand that power at will because they’re subordinate to the President and the President cannot unilaterally and legally make laws on his own, nor can any of the agencies which answer to him.
You just don’t get one without the other, even if you cut the staff down to the bare minimum that can still efficiently manage government programs you still end up with a sprawling bureaucracy.
In any case, if the function invested in the government is a misapplication of public money then the bureaucracy servicing it would also necessarily be unnecessary. If the function is necessary, that does not mean the bureaucracy servicing it isn’t sprawling. The military has what could be termed sprawl, but that’s a function of the broad scope of its missions and global reach.
[1] https://ballotpedia.org/Massachusetts_v._Environmental_Prote...
If we don't like it when the police creatively interpret laws to target minorities, can we allow the EPA the authority to creatively interpret laws to target fossil fuel companies? Is it possible to give the executive authorities the power to be creative, but only in the service of a good cause? This Supreme Court believes it's not, and that seems like a reasonable position to take.
You can disagree with the legal justification, but that you disagree is not evidence that it was invented to achieve a specific goal.
Sticking our heads in the sand because theres still percentage points of doubt leads to disaster.
https://www.businessinsider.com/clarence-thomas-told-clerks-...
It’s not supposed to work that way. The legislature makes laws, the court interprets under the framework of the Constitution.
Precedent is important, but it’s not supposed to create law out of thin air. It’s supposed to be based on a firm set of decisions that flow from the Constitution and law.
Besides the latest Roe V Wade decision deviating from two previous decisions which were decided by larger majorities, it also cites ideas based in “originalism” or constitutional fundamentalism which don’t even make sense. They argued there is “no general right to privacy” outlined in the constitution, which clashes greatly with any reasonable reading of the 4th amendment.
So please, do explain how the 4th amendment doesn’t grant any right to general privacy, and how this current highly political court is somehow actually being more legally objective than the previous two which created and upheld decisively the ruling which is also generally agreed to align with reasonable moral stances
The point is that we should live under legislation that is agreed upon via democratic means. Congress has pretty broad powers to create laws. Where those powers are circumscribed, such as with gun control, we have prescribed mechanisms for amending the constitution and making it less bad.
I'm highly critical of the court legislating from the bench, whichever direction it does it from. I'm _extremely_ frustrated and dismayed that our legislative branch punts so many contentious issues to the courts. If the court is now less willing to play that game, maybe we'll go back to deciding things in the legislature, where we can have a debate that is values-based, and not just based on the reading of a baroque 18th century document.
For what it's worth, I favor broad government action to address climate change and excessive CO2 emissions, but it's going to be better for everyone if there's some horse-trading here and we get some broad buy-in instead of having it be imposed by unelected government appointees that are not operating under a broad mandate.
If we can't get broad buy-in, I guess that means we can't deal with climate change democratically. Maybe then one wants to advocate for non-democratic measures, but then we should just be honest about that.
The Founding Fathers seems smarter and smarter the more you dig into it.
Originalism is as bad in jurisprudence as orthodoxy is in religions. It is extremely dangerous to act like there haven't been hundreds of years of civilizatory development in all areas since the scriptures were written. Originalism/orthodoxy/fundamentalism, especially one that doesn't take contemporary issues of the text's origin into mind, always is bad.
Add on top that the judicial picks of the 45th were carefully selected for their attitudes and the GQP ignored a boatload of red flags for every single one candidate, and now it's not just "application of a different theory", it's a full-blown takeover.
No it isn't. Your analogy doesn't really work because religious scriptures can't usually be amended (within the context of a single religion), while there are well-defined mechanisms for amending and updating law (e.g. what legislatures do all day). Basically: update the text itself with the needed changes, not the interpretation.
There are serious problems with using interpretation to update law: it makes the text ambiguous, because who knows how some loosely-constrained judge(s) will decide to "update" it in the future, and it's anti-democratic because it bypasses the democratic political bodies who's actual job it is to actually make the updates.
The problem with US constitutional law right now is that a lot of people want certain things to be "constitutional" when there's no actual consensus for doing so (a consensus isn't 50% + 1, it's "pretty much everyone agrees").
All humans have inherent biases and lenses and perspectives. Do jury duty sometime. Actual factual recollections vary in details and even factual accuracy
In an absolutely pure form? Sure, but that's true of most good things (e.g. justice). That doesn't mean the concept is bad or that shouldn't be pursued to the greatest degree possible, especially when the alternative is to have someone interpret the law like Humpty Dumpty when it suits them (https://www.fecundity.com/pmagnus/humpty.html).
There's nothing stopping you from rewriting the laws. Religions don't work that way.
Although, the US constitution is almost a religious text the way it's treated as almost sacred. Why does anyone still care what the founders intended? They're not prophets...
As a foreigner whose country changed constitutions a good dozen of times since the USA passed its own and amends it more or less yearly, this used to baffle me. My take is that there is so little that units American together nowadays that they cling strongly to every anchor they can find.
We can under the legal theory "What I want goes; what I don't want, no."
I agree with this completely, but it doesn't help when justices begin their opinion / concurrence / dissent with a long policy discussion before talking about the legal questions. That's been the case in several of the recent decisions.
Dissenting opinion quotes the following, which to me (and at least one supreme court judge) does not seem to limit this power:
> “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated.” §7411(a)(1).
In this particular case, the majority opinion starts off by quoting the relevant statute and analyzing its meaning, whereas the dissent starts off by saying (quoting) that “climate change is the most pressing environmental challenge of our time”, and continues with a long litany of how bad it is.
Really, I find the entire thing to be rather crazy: if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this. At the same time, the EPA’s argument in this case was that the Congress has already delegated this to EPA. Considering that the Congress won’t pass a law confirming that yes, it did in fact delegate authority to execute these particular regulations (which, again, would render the entire SCOTUS decision irrelevant), I find the EPA’s argument of rather dubious quality.
Operating a meth lab is dangerous _because_ it's illegal. If it were regulated and licensed, it would be no more dangerous than say operating an 18-wheel rig.
My bet? "Interstate commerce."
No, according to the Supreme Court, it's interstate commerce if a butterfly bats its wings and the resulting hurricane causes someone to buy a raincoat in another state.
IIRC, the actual case involved someone growing wheat their own land that they didn't even plan to sell. But since wheat was sold in interstate commerce, the court said any activity involving involving wheat could be regulated as interstate commerce.
https://www.oyez.org/cases/2004/03-1454
> The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market.
Seriously.
RBG didn't see it that way.
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights."
https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...
I'm just curious in what ways this distinction would play out. I can see if "consuming" was illegal and "possession" was not logically works but it's harder to see how "consuming" is legal and "possession" is not doesn't effectively make "consuming" also illegal.
I didn't really see anything from the dissenting opinion about how the right to an abortion is given by women's right to voting, property or divorce (?).
JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting.
For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.
...
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an un- safe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.
...
The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.
Regarding your previous examples:
- Right to own property: In Kirchberg v. Feenstra, a law giving sole control of marital property to the husband was found unconstitutional under the Equal Protection Clause. So it's related to Roe v. Wade's Due Process argument, but not quite the same.
- Right to vote: This was explicitly granted by the 19th Amendment. Before that, the Supreme Court had ruled in Minor v. Happersett that the 14th Amendment's Privileges and Immunities Clause did not give women the right to vote, though one might imagine that the Roe court (or the Dobbs dissenters) would have disagreed (or would have found that right in a different part of the 14th Amendment).
- Right to divorce: I can't find any major Supreme Court cases trying to establish such a right. All fifty states allow for no-fault divorce, but that's grounded in state law and is only true as of 2010.
And many many many people disagree with that idea. Denying that people disagree with that distorts your picture of the matter.
So many on the left view this as some kind of patriarchal ruling, but in my experience it's conservative women who are more against abortion than conservative men.
People are free to disagree with the personal choices free citizens make. People are not free to impose their beliefs on others and force them to carry or birth a parasite through coercion or force. Any conversation about forcing women to birth anything that does not include radical changes to:
healthcare, social safety net, the best parental leave laws in the world, wide carve outs for incest, rape, medical problems, birth defects, litter reduction, to name a few things
is a blatant exposition of the moral bankruptcy of the forced birthers seeking to impose their ideals on others through governmental violence. I haven’t met a forced birther yet that’s thought through all the complications of their grand scheme and come out the other side still a forced birther. Typically they just get mad and devolve into all sorts of fallacious statements, sometimes they storm off, and I’ve walked a few level headed people through enough of the realities of forced birth for them to autonomously realize that such laws cause so much suffering and cost so much in real economic and tax dollar terms that forced birth is regressive and will make the states it takes effect in worse places in all important measures like: infant mortality, student test scores, parental homicide, violent crime, etc— because the research on these topics is unanimous. Access to contraception whether condoms or third trimester abortions is an essential right to maintaining and strengthening a modern society. Anyone that doesn’t want to live in modern society is free to go build an island and reinvent the conservative turned libertarian ascent into liberalism wheel.
The fact that you can’t appreciate a minuscule difference in terminology, and the pointed intent, is all I need to know that you wouldn’t be arguing in good faith. demanding anyone name parasites children is nothing more than a limp wristed attempt at controlling the language used for the discussion as a propagandistic method to be used after a technical (read: pedantic on the level of grade 6 debate club) victory or worse, a legal win due to the erosion of the church state divide which is a flagrant violation of the constitution. I am guaranteed my right to abort as many parasites as I want by my adherence to Satanism as you must bring to term despite crippling defects due to incestuous rape due to your obviously strict adherence to your religion that considers unviable parasites a child. So please tell me about how America cares for children with severe birth defects sacrificed to the care of the state are cared for and how the regressive religions against abortion get the funding to guarantee every abandoned child a life equivalent to the American median. I’ll wait longer than I should because these statistics are impossible to provide because the GOP stops legislating for parasite rights as soon as they’re birthed. I’m also waiting for these organizations to give up their tax exempt status due to their flagrant political meddling.
Maybe one positive (very long term) outcome of this food fight is the rediscovery of the 9th Amendment and less reliance on the Due Process clause.
That con argument that the right to an abortion is not in the Constitution baffles me. Um, exactly. The framers anticipated these kinds of circumstances. Hence the 9th Amendment.
The government could not control a human’s body or the course of a human’s life: It could not determine what the human’s future would be. Respecting a human as an autonomous being, and granting them full equality, meant giving them substantial choice over their most personal and most consequential of all life decisions.
It is very clear from the text that the decision to have a child is more than just the pregnancy or the birth. It is also about the life-transforming consequences, the childcare and the time and money to raise a child. It is about the social impact and the lives that such choice impact.
All those belong in a human right where willing consent of parenthood should be in focus.
There are always dilemmas and paradoxes. The proper job of the Court is to find the middle path. Consider the whole system and strike a balance. Arbitrate an acceptable consensus.
And that requires mitigating a decision's downsides.
That was the approach of the German Courts. In addition to proscribing the rules around abortion, they also put into place structures to reduce the need for abortions, improving the health and well being of all women and children.
So reasonable. Sounds like heaven.
Guess which two of those Thomas wants to revisit and the one he probably doesn’t?
Qualified immunity and asset forfeiture would like a word.
It's clear that they are simply using "originalism" to cherry pick what falls in line with their personal opinions.
The Supreme Court stated that you could not apply handgun laws in a way that privileged one group over another. Historically, if you were black, no gun. White and knew the governor? Weapon up.
The supreme court's policies have been pretty straightforward if you read the constitution. The legislature has the responsibility to write the law. Not the supreme court (which is un-elected), not bureaucrats (who are un-elected) - without explicit law to make it possible.
The fact that everyone is screaming that an unelected bunch of mostly white folks are returning power to congress and telling them - no, be democratic - reveals a awful lot about the current state of the United States.
Claiming this in the same post you accuse someone else of "deliberate misreading" is a bit funny.
New York State Rifle & Pistol Association Inc. v. Bruen goes substantially further than that.
You are just illustrating my exact point. Right to keep and bear arms is explicitly secured in the Constitution that it “shall not be infringed”, whereas nothing of this sort is clearly and explicitly said about abortion rights. Here, again, conservatives focus on what the law actually says, and liberals focus on their preferred policy, and if their preferred policy is not to be clearly and explicitly found in the law, it is instead found in the “emanations of the penumbra”.
Only in the context of a well-regulated militia, at least until Scalia amended the Constitution in Heller.
An individual right to keep and bear arms was newly discovered in 2008, in a 5-4 decision. It took 220 years for a single vote majority to find evidence of it.
> it is instead found in the “emanations of the penumbra”
That's a funny way of describing the Ninth Amendment.
It's truly hilarious, given the context of when it was written.
https://en.wikipedia.org/wiki/Militia_(United_States)
> During colonial America, all able-bodied men of a certain age range were members of the militia, depending on each colony's rule. Individual towns formed local independent militias for their own defense.
Even today, there are organized, state-run militia (the National Guard) and unorganized, independent militia.
Notice the first phrase. Absolutely nothing here says “every Joe wacko can have military grade arms in case they want to overthrow the government “
Tell me it’s originalism to interpret the words above in any way other than what it reads as: a description of state militias.
Regulated means armed with military grade guns, and is not a description of legal oversight (eg regulations)
"A well regulated Militia" literally meant a military armed citizenry.
The intent was to have no paid or professional military and the military was to consist of citizens bringing their arms from home to fight with.
2nd amendment can be losslessly paraphrased:
"because it is important to form well armed mobs, every Joe wacko can have military grade arms"
It literally says a well regulated militia. Fact.
Spare me your creative interpretation masquerading as originalism
The majority of states in the US will have the same abortion laws they have always had.
If there was a handheld contraption with a trigger that could fire a small nuclear projectile that could destroy an entire city would the right to have one be protected by the second amendment just because it fits the general definition of a gun?
>If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says.
The dissertation focuses on that. The actual reasoning might be based on something else. The court is strongly interested in projecting an image of being neutral, and of only going off of the wording of laws, rather than involving their own biases. Thus, the majority opinion should be read as an attempt to assign such a motive to their decision, whereas the dissenting opinions attempt to assign the opposite motive. That is, they attempt to suggest that the majority ruled this way because they are insufficiently worried about climate change.
But that would be backwards and wrong (like a default-allow firewall rule).
No, they didn't. Congress delegating to the EPA (for instance) the power to regulate CFCs to save the ozone layer, does not also delegate the power to the EPA to regulate CO2 to solve global warming.
https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
> The Administrator shall periodically review the list established by this subsection and publish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, but not including releases subject to regulation under subsection (r) of this section as a result of emissions to the air.
This doesn't accurately represent the present situation on this or really any topic. It makes is sound like members of Congress simply don't care. Unless the filibuster is removed or reformed, a party wishing to legislate on any controversial issue needs a super majority in the Senate to pass the legislation just in that chamber of Congress. They also need control of the House and the presidency. There is plenty of political will in the Democratic caucus to pass this legislation, but due to gerrymandering in the House and the inherently unrepresentative nature of the Senate they cannot get enough votes to pass legislation, however much they may wish to, on the rare occasions the stars align and they have control over both the executive and legislative branches. The Republicans need control over only one of these three choke points to stop legislation. And now that they have a generation of control over the Supreme Court, and the Court has demonstrated that they regard legal argument as post facto justification for political decisions, the Democrats are well and truly screwed. There may be some Republicans who secretly would like to do something about any one of the major catastrophes facing the nation and the world, and some may claim this in public, but because their co-partisans are making total political war on non-conservatives at the moment they can't actually do anything or they face the mob.
Basically, "political will" isn't the issue. It's our crappily designed "democracy" mixed with total political war, strident propaganda, and millennialists who are happy to let the world go to hell because they think they're going to heaven.
FDR set up a bureaucratic state to try to get around this, but it’s not what the constitution envisioned.
I for one am happy that unelected bureaucrats (who the voters have no way to get rid of) now have less power, and that politicians who can be held accountable now have to act explicitly to make big changes. Again, working as designed.
Politicians are held accountable for not doing things as well. In our current system whoever is in power is held accountable, even if they didn't do anything because they were blocked by our byzantine form of government. But the politicians who should be held accountable are the ones who blocked it. Do you view this as a good system?
Consider a scenario:
President Bob and the Do Something party are in power. They really, really, really want to do something. Everyone is yelling at them to do something! Something must be done! But the Do Nothing party uses some procedural mechanism, or their control of the cloak room, or the secret password written on the back of the Constitution, to keep anything from happening. The public doesn't understand the system, because few people do; all they see is that NOTHING IS GETTING DONE. The Do Nothing party is quite pleased to stick all the blame on the Do Something party. They don't enlighten the voters. Even while they block any action they go on TV and solemnly intone about the fecklessness of the Do Something party. They said they would do something! Look what they do when in power! So feckless! So the voters punish the Do Something party at the polls.
This is more or less how our system of government works.
Sometimes something needs to be done. But we can't do anything!*
* Footnote: this isn't strictly true. The Do Something party will cooperate with the Do Nothing party on those rare occasions when the Do Nothingers actually want to do something. The Do Nothing party will not reciprocate.
> On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
The Supreme Court is not supposed to set policy. It's only supposed to rule on if the policy set by others (Congress) is constitutional or not.
If the EPA could do anthing to stop emmisions, banning power plants from existing at all would satisfy "do anything to stop emmisions", so would "depopulating the planet" (no people, no need for power plants). Those seems like they make it pretty clear they need specific limits. They were given specific limits. The court confirmed that.
Congress needs to increase what they're allowed to regulate and how if they want more power. It's frustrating that that's so hard to come by but it's hard to imagine how else it could be
At this stage in the climate crisis, we really need to be focused on direct results of political actions. The majority of the US population wants regulations to fight climate change, and the consensus among climate scientists is that if we don't aggressively cut carbon emissions immediately, things will get really out of hand. Therefore, if the Supreme Court is reducing the EPA's ability to help this, it is both anti-democratic and massively harmful to the public good. It really doesn't matter that the EPA is executive overreach according to some document written 230 years ago.
Look, even as there might be general agreement among the people to fight climate change, there might be little to no agreement among the people as to how to actually proceed doing that. Because of this, you cannot say that blocking EPA here is undemocratic, because “ majority of the US population wants regulations to fight climate change”: it is very much untrue that majority of people want the exact policy that EPA tries to introduce, and have it be executed by EPA. It’s like saying that majority of US population want regulations to improve their commute times, so SCOTUS cannot block DoT from eminent-domaining land through cities and building 10 lane highways on it. Some people want that, sure, but others want more trains or zoning regulations to improve walkability, and there is no majority agreement here on the details of the policy. You certainly don’t want unelected bureaucrats with no accountability to voters be deciding major issues like that.
In an environment with as much epistemic uncertainty as climatology has, it is madness to allow bureaucrats to control anything at all. They are in no way fit to make important decisions on scientific topics.
Cases make it to the Supreme Court because the outcome is ambiguous, so the court can’t actually make decisions based on an objective standard. It’s simply not how they operate in this or any other court.
Instead the outcome is decided and various legal justifications are provided by both the justices who agree and those who disagree. You can agree or disagree with the outcome of any case, but there’s a reason the appointment of Supreme Court justices is considered so politically important, it’s a political job.
This is the naive version of how SCOTUS works that they teach us in elementary school.
History has shown that the Supreme Court is a political body with its own political agenda. The doctrine and precedent cited is used as a justification for whatever policy they actually want to enact.
Yes, there are some guidelines and guardrails, but this is a case of the tail wagging the dog. They choose their interpretation of law based on the actual impact they want to have on society.
It's about what policies the judges personally prefer
Thomas wants to revisit a lot of rulings like the one that gave gay people to right to get married. But I bet he won’t revisit “Loving vs Virginia”.
https://www.al.com/entertainment/2014/10/how_do_christians_f...
Anecdotally, I am Black and live in in a predominantly White county that was a famous “sun down town” (https://m.youtube.com/watch?v=WErjPmFulQ0) in the 80s.
The people in that video still exist in the county. They just have been overrun by professionals moving in as builders took advantage of abundant land and built houses over the last ten years.
It’s just not as acceptable to espouse those views in modern society. I’m sure some of the family members of the White girls my (step)son dates (the county is still only 3.8% Black) would not approve of their relative dating my son. Don’t get me wrong, by “relatives”, I mean grandparents, older relatives, etc. I’ve never sensed any hostility from parents. But that could be because they think we “are one of the good ones”
They also wrote Dredd Scott, Ferguson, Citizens United, and Korematsu.
At what point do you constrain the power of the supreme court to make law as opposed to interpret it?
The Supreme Court has done far more damage then help, historically.
A) women we're suffering from the lack of the right at the time.
B) that churches and GOP actually drove the polarization, they chose to use it as a device to divide.
It would be like saying abolition of slavery was too soon because it caused the civil war... Who cares the law shouldn't have to wait for cave men to move forward.
a) no. States were in the process of legalizing it - with restrictions far more in line with the rest of the democratic world.
b) no. In fact, most churches (the SBC for example) polarized _after_ roe v. wade. In fact, most evangelicals were left-leaning prior to this ruling. (Some partisan hacks will insist that it was desegregation that led to this, but Brown versus Board was 1954, and the SBC was still solidly liberal in 1972). Roe v. Wade lit everything on fire. (See RBG's comments on Roe V. Wade), precisely because it was a un-elected court making a change that no law could challenge.
It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
My hope on all of this is that this ends the imperial court - and abortion stops being the mother of all wedge issues, and allows some elements that moved to the right because of the undemocratic change to move back to the left now that the democratic norms are re-established.
There are of course two followup questions here:
1. Would the current supreme court allow a federal abortion law that codifies roe? The SC opinion explicitly notes that their ruling returns this to the states, but federal representatives are representatives too.
2. Does it really make sense for rights to be up to the whims of the legislature? If it takes 60 votes to pass a national abortion legalization, and 50 senate votes to repeal it, will we end up with lasting legislation, or just a de-facto ban because abortion is repealed every 2-4 years?
now they do.
Will it be hard? Extremely. Is it likely to fail before it’s done? Absolutely. But when it’s finally done, at whatever compromise, those rights will be enumerated and well established and it will take millions of people to take them away…instead of six people.
In the meantime we have states democratically choose their path.
Divided we fall.
It would be better if these were clearly codified in laws vs being on shaky ground forever. E.g Roe v Wade
They upheld Obamacare again just last year.
> They are only rolling back these excesses because it fits their ideology.
This is just liberal projection. Liberal justices almost always vote as a unified bloc on major cases based on the results. It's always the conservative justices that go wobbly: Thomas voting against federal marijuana prohibition, Roberts repeatedly voting to uphold Obamacare, Roberts opposing overtrning Roe, Kennedy finding that the Constitution protects same-sex marriage, Gorsuch and Kavanaugh finding that the Civil Rights Act protects sexual orientation, etc.
https://en.wikipedia.org/wiki/Ideological_leanings_of_United...
That is not exactly accurate. What Justice Thomas wrote was that cases setting precedence in the area of due process may need to be reconsidered due to the same shaky legal underpinning that Roe v. Wade sat on.
It is the result of that revaluation that could impact Obergefel. Certainly, he could very well hold a negative opinion personally about gay marriage, but his suggestion could create issues for his own marriage legality as well. I am sure he is intelligent enough to realize this—which begs the question why would he suggest it if it could negatively impact him?
I suspect that the answer may be that perhaps he feels it’s important to correct a legal error, so that subsequent judgements are stronger. He likely feels that congress should be creating the laws, as opposed to us relying on legal fiats. I know I agree with that. Congress has a duty to us set forth in Article 1…it’s time they started taking that seriously. If they did their jobs and wrote good laws, what we have seen in the last week is less likely to occur.
They shall go down in our childrens history as villains.
But, conservative justices clearly had a bone to pick there, despite obvious conflict with the words of the constitution. For some reason.
There's a long and storied history of things being in conflict with the constitution and justices simply not caring. Slavery and Dred Scott come to mind, and although I'm sure there's plenty examples peppered in from other parts of the grand political spectrum, it's never been a well kept secret that the conservative M.O. is noticeably bolder and shameless in almost all regards, its major strength actually being in its willingness to use every tool at its disposal with minimal concern for blowback or legitimacy.
The recent state law strike down coming across as highly ironic (but probably not to conservatives since it achieves the actual goal not of ethics or consistency, but of simple victory) because so much of what conservatives got away with for decades directly defying the constitutional rights was based heavily on the concept of state's rights. Like informal slavery/servitude after the war, or keeping your elections nice and extremely predictable until that awful civil rights movement.
"Textbook" has nothing to do with this, or any of the wild departure of rulings being made in recent times. It's all very, VERY simple strategy: use what you have; dismantle what you can; build defenses where you can; you're in this for the Party.
> Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
This is not at all true. Yes, there are lots of Christians that don't support abortion. Yet, there are many Jews that do and specifically cite their religion.
While religion may influence worldview, the fundamental abortion question comes down to the fact that the Constitution does not define when a person becomes a Person. I think the recent legal ruling was proper because of the specific omission of abortion in the enumeration of federal powers.
This EPA decision, however, I think is wrong, because the major question doctrine cannot be consistently applied and is constitutionally baseless so far as I can tell.
Edit: forgot to write:
> There's a long and storied history of things being in conflict with the constitution and justices simply not caring.
I imagine everyone thinks this about some things. I agree with your assessments of bad precedents above, but conservatives aren't the only ones that do this. FDR threatened to pack the court to get his way with the New Deal and the Wager Act, which included things I believe are unconstitutional such as Social Security, Minimum Wage, Medicare, etc.
How many Jews are currently Supreme Court justices?
That’s pretty extreme.
You cannot realistically expect 21st century America to agree with you.
If the constitution DID oppose a minimum wage, and it doesn’t, I would say ditch the constitution. Common sense.
Thing is, all this legalese mumbo-jumbo is a racket and a scam. The constitution is written in plain English in a rather common vernacular.
So-called “conservatives” have hijacked a silly notion of knowing the original intentions of the founding fathers and delivering an unbiased truthful channeling of that into a winning strategy. To the rest of us it’s rather obviously a scam.
These same justices will toss contradictory evidence whenever it is at odds with their goals.
This is not an interesting observation but a disingenuously naive hot take straight from right wing reactionaries that conveniently or ignorantly ignores reality and the history of radical theological propaganda that’s being crafted by conservative think tanks and disseminated by their media orgs in a campaign to manufacture consent and shift public opinion. This particular tactic is called projection.
>>projection:
>>Psychological projection is the process of misinterpreting what is "inside" as coming from "outside". It forms the basis of empathy by the projection of personal experiences to understand someone else's subjective world.
>I think the recent legal ruling was proper because of the specific omission of abortion in the enumeration of federal powers.
Then abortion is plainly protected by the ninth, tenth, thirteenth and fourteenth amendments. One must use their ideological or theological beliefs as renegade dogma in order to reject the protection afforded by these amendments.
I'm not sure why you would say that. The late Justice Ginsberg was a frequent critic of Roe as case law (despite being an ardent advocate of abortion) and thought the fundamental reasoning used in Roe was defective. [0] Roe was roundly criticized from jurists from both the left and the right on a number of fronts. It was bad law that ruled broadly on a highly divisive topic. Some folks strongly agreed with the outcome, so it became a third rail. Overturning precedents like Roe, while controversial, is healthy and gives us the opportunity to replace it with something on more firm legal footing.
[0] = https://www.washingtonpost.com/history/2022/05/06/ruth-bader...
Most of the decisions reduce the power of the executive and the court itself and give power to the congress and states.
I might agree with you if they made abortion illegal nationally. But they didn’t - they said it’s up to the voters and their representatives.
The Obama era Clean Power Act is not law!
This court went out of their way to steal authority thst congress specifically placed in the EPA and based their judgement of overreach on a non-law proposed bill from over a decade ago.
I allege that they are corruptly serving the Federalist Society agenda and deliberately dismantling environmental regulatory bodies for clear goals the Federalist Society maintains
United States of America is currently legislatively oppressed.
Edited for clarity.
Your disagreement doesn't have any effect on reality.
Care to back up your claims with actual evidence?
> stricken down a fifty year precedent
Is it somehow bad to strike down old precedents, regardless of content?
> told a state that they can’t enact their own concealed carry act
Is it somehow bad to tell US states that they can't do things that would violate the US constitution, which is explicitly meant to apply to all states?
> obtuse society-wrecking
Translation: "these rulings don't agree with my political positions" (so I'm going to use language that conceals my preference to suggest that they're bad).
> They shall go down in our childrens history as villains.
Not a constructive addition to the conversation, smells of emotional manipulation.
_in your opinion_, you mean?
These reactionaries represent the dead hand of a generation of people who control or seek to control to guide society to meet their own generational/dynastic wealth and power goals.
I’m sure you’ll feel differently as the assaults on the 14th amendment continue and things like the right to privacy are whittled down to a nub.
Of course, the truth is that living generations are not nearly so united against this as you seem to be suggesting. There certainly isn't enough consensus to pass any amendments. It's not really the dead hand of a bygone generation doing this, it's people who are still very much alive and relevant who disagree with you.
I can’t imagine the World War generations silently watching Tucker give aid and comfort to Putin either…
> I can’t imagine the World War generations silently watching Tucker give aid and comfort to Putin either…
Yes, the world war generations had trouble with the principle of free speech; for instance, arresting people for protesting the draft during the first world war: https://en.wikipedia.org/wiki/Schenck_v._United_States And do I need to remind you of the mass internment of Japanese Americans, convicted of no crimes, during the second world war?
I like to think we've made some progress since then.
It’s a prime motivation for some of the more extreme positions and differentiates the 2020 right winger from a 1980 conservative.
Key quote from the dissent:
> Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.”
So, does CO2 qualify, or is it a "major new problem"? Sounds like a policy issue to me.
By the way, it definitely isn't a major new problem, the Nixon administration viewed CO2 and climate change as settled science in the 60s before he signed the Clean Air Act: https://www.nixonlibrary.gov/sites/default/files/virtuallibr...
Edit: Actually I think the particular Clean Air Act section in question only covers buildings or other "stationary sources", so I don't think marijuana would qualify unless a building was emitting marijuana smoke.
> The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.
That is explicitly delegating these decisions to the judgement of the EPA Administrator. This is extremely normal, every government agency works like this.
That is the matter of contention, isn't it?
Maybe they did make a mistake, but if so they can fix it. I think what the court majority is saying here is patronizing and wrong. There's a perfectly normal process for Congress to amend a law if it accidentally gave up too much power.
I prefer that matters like this be handled in an actually democratic way. Cannabis was legalized in my state because I and others in my state voted to make it so. That's democracy. Technocracts making unimpeachable "scientific" decisions isn't democracy, it's a faint shadow of democracy. Referendums are democracy, and are the democratic way to resolve these sort of social disputes.
When your state legalized marijuana, it delegated a ton of decisions to unelected officials - individual business licensing, labeling details, dispensary sanitation standards, valid medical applications, etc. There is probably a whole commission of unelected people who go through a formal rulemaking process which involves collecting feedback from people like you, just like the EPA.
It's ok if you don't like this model, but you can't claim it's not what Congress intended and not a normal state of affairs at the moment. It's just how the country works, we don't have Congress vote on every single pollutant, medical device, potential drug, import/export restriction, endangered species, etc.
But it's not a major new problem. The Congress that established the EPA granted the "stretching" along with it, otherwise it would take an act of Congress to determine the color of the Post-its.
The new rulings are farcical zealotry. Apparently, the only people capable of making decisions died 100 years ago and anything we've learned after the Civil War doesn't matter.
No. This was planned, planned very in advance, planned in the open. The republican party has openly wanted to do this for decades, put a plan in motion and executed very well. It is obvious that these justices are completely beholden to the republican party, and should be seen as such. We can play all the dumb semantics games we want, but none of that changes that the Supreme court is part of the US government, that their decisions have broad consequences, and that those consequences are obvious.
If you do "the right thing" and it leads to millions of people oppressed when "the wrong thing, or nothing at all" would have led to zero suffering, did you really do the right thing?
Everyone publicly wants socialism, and privately wants to protect their own assets.
the majority invented the doctrine to neuter Federal agencies.
So the FAA can’t determine and then require that aircraft have transponders. Congress has to do this.
If they continue down this path it will be chaos.
From the final paragraph of the opinion:
"But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."
So it seems that Congress can still give the EPA a more clear delegation that they have this power.
Congress is now free to focused on creating chaos between the people that elect them. When is the last time you've seen anyone from Congress campaign on any substantive issue? I've not seen it in my lifetime they leave that campaign up to the president. Congress is invested with the sole power to regulate our money when is the last time you've seen them do anything except throw up bloated budgets? They have completely advocated that power to the Federal reserve of which they exercise zero oversight of and apparently leave it to the president who also lets it run autonomously.
So what you call chaos is reconnecting the actual responsibilities of our elected representatives with their duties. I for one would very much enjoy seeing my elected representative actually doing their constitutional duties instead of pitting citizen that one another's throat in order to get reelected again.
there's definitely a gap between regulatory officials making regulations and legislature codifying the details. This is where appointing heads of those departments is supposed to come to bear.
It's a mess, but the answer isn't to let lobbyists and special interests burn the house down.
have you met any congress personnel? "dedicated", "idealistic", and/or "thoughtful" apply to some of them.
How many regulatory bodies are there that need rules passed? I can think of the FAA, FTC, EPA, FDA, USDA, and the NRC just off the top of my head. A quick google search shows there are 19 of these rule making agencies. Even with a wide distribution of rule making authority, these agencies struggle to keep up with our rapidly evolving world.
Forcing congress to hear and make a decision on every single regulation these agencies propose would be a bottleneck that brings this country to it's knees.
Removing ~3 weeks vacation gets you down to 245. Eleven federal holidays? 234.
200 days/year sounds like an almost full-time job?
Also, most sessions only run a few hours, and many more are pro forms, where the minimum quorum show up (I think this is something like 15 or 20), open the session and then immediately close it.
Sure, Congress is in session for about 200 days, and even when it is the elected officials aren't typically on the floor for the full day. But that doesn't mean that when they aren't on the floor they aren't necessarily working. They could be meeting with constituents, with their staff, reading bills, going to committee meetings, just meeting with other reps/senators etc.
You make it sound like they don't do anything.
https://www.opensecrets.org/industries/indus.php?ind=E01
So due to the ignorance and corruption among conservative lawmakers regarding climate change and carbon emissions, congress has been in an ideological deadlock on the issue of climate initiatives. The EPA existing somewhat independent of that framework was a benefit.
Because then you're left with who is better convincing uninformed people; the experts, or paid lobbyists.
2. Politicians, per definition, are elected to represent the interests of their constituents. Many constituents disagree with experts (climate change, for example). QED, there is little motivation for politicians to listen or follow the advice of experts, especially if an expert's conclusion is not popular.
They can and should take advice but the whole point of democracy is that the policymakers are democratically accountable.
Yes, that's what the executive branch is for. That's how our government and basically every government in the history of the world has worked.
> When is the last time you've seen anyone from Congress campaign on any substantive issue?
Literally every campaign in my life that I've had any exposure to. Campaigning on real issues is not hard, the problem is getting into Congress and then being unwilling or unable to follow through.
> it appears to undercut the ability for any executive agency to make a rule, under them claim that congress cannot delegate its powers.
> Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.
The reasoning for this is that:
> We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies
Darn, my interpretation is shown to be naïve by someone who actually has the specific relevant experience!
Joking aside, thanks for your comment.
Negative example: The BATF has a splendid history of literally doing nothing except putting it's critics behind bars, while solving 0 actual crime and preventing any sort of mass tradgedies.
Positive example: The FAA has done an incredible job making air-travel safer than car travel. I have a feeling that a lot of the higher-ups are former engineers and have been able to put politics and red/blue crap aside for a common mission.
Mixed example: The FCC has done a great job on spectrum allocation. They've done a shitty job when on broadband and content regulation, with it quickly becoming politicalized and more concern about red/blue.
Good example: The FDA has done a great job in regulating the industry for their namesake: food and drugs. We have unprecedented levels of safety in both despite not having a complete knowledge of how all drugs work (biology is just complex with a lot of hidden downstream after-effects).
Poor example: The NRC has pretty much just said "No" to fucking everything in nuclear. No progress has been made. We should have 3-5 reactors (on average) in every state. Instead we're still running 50 year old designs (not _necessarily bad_ but not great either) when we could have Generation III+ with passive failure modes.
That brings me to the EPA. I think they've done a lot of good: energy efficiency ultimately benefits the consumer in nearly every case. I have an air conditioner that kicks out a splendid 58degree air stream in the summer heat and extraordinarily low energy consumption levels. The EPA has successfully sued countless corporations and created superfund sights when they just dump industrial waste without a plan to handle it.
Unfortunately, as red/blue politics get involved in an agency, everyone loses. And the finger pointing begins. As such, the only "way out" may be to say delegate it to Congress. I'm not sure where we go from here.
Going to hit the wall and let the corporate decide.
737MAX enters the chat
The Sackler Family/Purdue Pharma and Oxycontin has entered the chat
It's hard to see what the FDA (didn't) do in that case as anything but complete corruption. Allowing a new label for this new untested drug and then the head left to go work for Purdue shortly after? Revolving door.
I'm not sure whether "good" is better or worse than "positive", but the FDA is definitely closer to "mixed" than the FAA. I'm generally very pro-FDA for the reasons you listed, and argue against the libertarians who want to abolish it. However, there's lots of legitimate criticisms about how it's frequently too conservative in allowing trials or approval for potentially life-saving medication, or approving medications and supplements that are considered safe and commonly-used by other countries.
Scott Alexander of SSC/ACX has many[1][2][3], many[4][5][6] posts pointing out instances in which the FDA's arguable-excessive roadblocks have failed US healthcare patients, coming from his experience as a professional psychiatrist.
[1] https://slatestarcodex.com/2013/09/28/sleep-now-by-prescript...
[2] https://slatestarcodex.com/2014/06/15/fish-now-by-prescripti...
[3] https://slatestarcodex.com/2014/08/16/an-iron-curtain-has-de...
[4] https://slatestarcodex.com/2019/03/11/ketamine-now-by-prescr...
[5] https://slatestarcodex.com/2013/11/26/a-letter-i-will-probab...
[6] https://slatestarcodex.com/2016/08/29/reverse-voxsplaining-d...
[7] https://astralcodexten.substack.com/p/adumbrations-of-aducan...
The vested interests who benefit from the fossil fuel industry control the flow of information to our representatives through lobbyists, and to the public through advertising. Panels of experts in their field are harder to influence.
Don't throw out democracy to do so.
Congress can still pass a law empowering EPA to regulate greenhouse gas emissions.
Congress could have mooted this case with ordinary statutory procedures at any point, but did not.
Consider, for example, how the FDA operates. They have a broad mandate to keep food clean and drugs safe. They don't have an explicit mandate of "you must only regulate tylenol and aspirin, we need to pass a law for new drugs each time they come up."
This ruling finds the EPA, who has the mandate to keep pollutants out of the air, can't determine that CO2 is a pollutant. Why is that? The 2016 clean air act specifically gave them the power to regulate air pollutants.
The only answer is political activism. There is no difference between the FDA's broad mandate and the EPA's broad mandate.
I recommend reading the dissent on this case. It makes it absolutely clear that this is an EPA power. The conservatives couldn't get new laws passed repealing the EPA, so instead they packed the court with political activists so they could make law from the bench.
HN is broken
I could, for example, define "sufficient consensus" as requiring that all laws require a 90% supermajority in the Senate. Or I could reduce this to 50% of the Senate. Alternatively I could reform Congress so that lawmaking requires voting totals representing 50% of the population.
Each of these is one possible version of "sufficient consensus", and still none of them actually matches the version we actually have. What is clear is that the sclerotic nature of today's Congress is problematic, and it's doing a great deal to undermine faith in our democratic system.
Do you know how many school teachers in China must buy supplies for their students with their own money? Zero.
Do you know how many Chinese ambassadorships are left vacant because of political bickering? Zero.
I am not a shill for the Chinese Communist Party, Xi Jinping, or the ideology of the Chinese political system, but I increasingly am a shill for the ruthless efficiency of the Chinese government.
The US's genocidal oppression has been ongoing far, far longer than the oppression of the Uyghur people.
https://www.npr.org/2022/06/29/1108717407/supreme-court-narr...
And knowing that, you'd take the guard rails off? Crazy.
China may well supersede the United States in the future, despite its treatment of minorities.
So when you're talking about consensus, the country has it. There's consensus on immigration, gun control, and abortion. It's just that Republicans prevent us from acting on it.
A majority of Americans support the right to choose [1] (61%), a path to amnesty for undocumented persons [2] (60%), restrictions on firearm purchase and ownership [3] (> 64%), moving off of fossil fuels and treating climate change like the threat it is [4] (76%), a wealth tax on people with a net worth of over $50m [5] (56%), the expanded voting rights in HR 1 [6] (>61%), etc. etc. etc.
These are big majorities, and I'd wager most Americans don't think this stuff is broadly popular.
[1]: https://www.pewresearch.org/fact-tank/2022/06/13/about-six-i...
[2]: https://www.politico.com/f/?id=00000177-d4f4-dd7d-ab77-fcfd4...
[3]: https://www.politico.com/f/?id=00000178-cfbd-d112-a97e-ffbde...
[4]: https://morningconsult.com/2021/04/27/paris-agreement-climat...
[5]: https://www.businessinsider.com/over-half-americans-see-weal...
[6]: https://www.filesforprogress.org/datasets/2021/4/dfp-vox-hr-...
It's not honest, it's not nice, and it's against the site guidelines.
I'd say that the doctrine properly tries to keep the supreme court, the least democratically responsible branch of US federal government, from being the most powerful of the three branches of government.
By pushing the responsibility to lifelong bureaucrats? I honestly don't see a difference there.
Chevron deference's main purpose is to free Congress from writing exhaustive laws. If the executive branch does something Congress doesn't like, they can change the law and make it more specific. Of course Congress does almost nothing, so when you say it has to take legislative action to regulate something, what you're effectively doing is deregulating it.
This decision follows more from the Court where they pick and choose what they doom in this way based on their personal politics, contrary to precedent and reliance interests.
We shouldn't think too hard about what this Court does; it's a nakedly ideological power grab that's the endgame of a generation long effort by Conservatives to control the US through the court as they slide further and further into permanent minority status. Future generations will look back on this era as one of infamy.
We really, really needed one of those groups of unelected bureaucrats to be policy and subject matter experts, and they weren't. But don't worry, all the others we haven't actually checked are!
The CDC is a relatively unique case of an institution that was really gutted by a mistake decades ago (the swine flu vaccine in the late 70s [0]) and then got some pretty bad Trump-nominated leadership [1] [2]). Elections matter, it turns out.
[0]: https://www.npr.org/2021/05/03/991570372/michael-lewis-the-p...
[1]: https://www.cnn.com/2020/06/04/politics/cdc-redfield-aids-wa...
[2]: https://www.politico.com/story/2018/01/18/cdc-director-avoid...
The FAA's got egg on its face from the whole 737-Max situation, the FDA is approving vaccines for under-5 year olds despite no evidence of benefit (and has had a few reviewers resign in protest after the same set of vaccines were approved for other age demographics), I'd bet dollars to donuts that people are going to be mightily unhappy with the Treasury in 6 months, the DOJ has all-but-eliminated the jury trial while providing generally substandard prisons, I've heard many things about the VA but I don't recall a single positive thing, and there's a ton of things that could be said of the DEA/ATF/FBI/DHS gang but very few of them are positive.
Here's the list, by the way: https://www.usaspending.gov/agency
---
I will say a couple of things to try and reach an agreement here. The first is that our gov't is pretty corrupt, even the executive branch (remember the CDC pulling down testing/masking requirements for flying around the holidays last year?) and it's pretty clear to everyone who looks at it. I'll defend the career civil servants, but the political appointees? Generally nah.
The second is that the US press is basically junk. Their incentives are so screwy that even people who want to be fair and rigorous are forced out in favor of profiteers, which creates an awful dynamic amongst viewers and readers. For example, this article is "Hillary Clinton's emails got as much front-page coverage in 6 days as policy did in 69" [1]. This one says NBC Nightly News spent 31 minutes on emails and 8 minutes on issues [2]. What were readers/viewers supposed to think? Has literally anything been covered so strenuously and consistently? It got more air time than actual terrorism.
[0]: https://www.washingtonpost.com/outlook/2021/11/29/booster-sh...
[1]: https://www.vox.com/2017/12/7/16747712/study-media-2016-elec...
[2]: https://www.mediamatters.org/nbc/study-confirms-network-even...
I’m not a fan of the current Court, but stare decisis has never been binding. Landmark rulings are landmarks because the create or break precedent. Courts have been doing that since there were courts.
To me, it seems clear that the "administrative state" is overseen by the president, who can overrule them and fire individual people, and the president is elected by the people every four years, and that makes the executive branch more democratically responsible than the supreme court, which is not elected by the people, and who serve for life with no democratic accountability.
But I'm open to hearing your argument for how the supreme court is more democratically responsible than the offices of the executive branch! Maybe we don't mean the same thing by "democratically responsible".
Since when
Congress gave the EPA broad discretion that it could have revoked -- using your argument -- at any moment. This issue has been bouncing around for over a decade, and Congress has systematically declined to do so.
"Congress gave them broad authority" != "they have authority over everything they can in any way claim relates (however loosely) to their mandate".
What this Supreme Court has decided to do is say that what they did doesn't matter, knowing that the current makeup in congress is in gridlock due to how modern day Republicans behave. Like the dissent was posted here. Congress explicitly empowered the EPA to work towards the best system of emission reduction.
Giving a broken legislative body the sole responsibility of literally saving the world is a really, really dumb idea.
As usual, it’s more nuanced than the headline.
The reason people are mad is because the court is relitigating long settled cases which breaks the main principle of the court which is don’t break userspace without damn good reason. We know they think the decisions were made incorrectly but the bar of “this is crucially important we fix” I don’t think it is being met. Instead it’s at best tone deaf to the real life effects of their decisions and more likely motivated to achieve specific partisan legislative outcomes.
A bad decision is a bad decision no matter how long it's been in effect. If anything, following "precedent" is what got us into this mess in the first place. We could have ripped the bandaid off decades ago on abortion and fixed it then. Now it's going to be much more messy.
IMHO, what actually got us in this mess was the Supreme Court putting itself into a situation where it's regularly making momentous political decisions, rather that resolving finer points of law, resolving little corner cases, etc. It might be expedient to use its power to set social and economic policy, but that doesn't mean it's right.
Given the horrifically vitriolic hate-filled partisan crap-fest we are in - it is much too late for that.
This shouldn't be surprising – controversial cases are more likely to end up before the Supreme Court than mundane ones.
[1] http://supremecourtdatabase.org/analysisFrequencies.php?sid=...
How many of those same people were mad about Obergefell, which did just that?
I really don't like having this unelected councils of wizards who get wield god-like "authority"-- it feels a bit gross in a democracy.
I 'get it' w/ respect BrownvBoard, Miranda, etc, but at least in my lifetime the court hasn't done much to expand or protect my rights. Greatest hits from them are weird election cases (Florida 2000) making it easier for really shadowy/fucked organizations to plow $$$ into elections.
If these folks are indeed just umpires & good old legal "scholars" who are there to call balls & strikes, why are hundreds of millions dollars spent promoting + grooming these individuals?
Going forward I'm very much in favor of subtle "judicial humiliation"-- across the board de-sanctify this institution
Step 0-- make 'em take C-SPAN cameras
So you feel the Cabinet posts should also be elected positions?
Start with the Secretary of the Treasury and move on to the Secretary of Defense and HHS.
The sooner the better.
but you are OK with the 'unelected council of wizards' at the EPA wielding their god-like authority instead?
[1] https://en.wikipedia.org/wiki/United_States_Environmental_Pr...
When it comes to the Supreme Court - that's it. Congress can't do anything about Supreme Court rulings. Your comparison of the EPA to the Supreme Court is misguided.
Actually, they can, that is the whole point - congress has the power to pass laws - SC does not. That is exactly what the SC just told congress to do - their job.
It is happening at the state level too. In Wisconsin, the gerrymandered (google it for background on Wisconsin) legislature has chosen to not conduct hearings on governor appointees, with the result that holdovers from prior administrations can remain in office indefinitely.
""(T)he expiration of Prehn's term on the DNR Board does not create a vacancy. Prehn lawfully retains his position on the DNR Board as a holdover," wrote Chief Justice Annette Ziegler for the majority. "Therefore, the Governor cannot make a provisional appointment to replace Prehn." [1]
[1] https://www.wpr.org/wisconsin-supreme-court-rules-former-hea...
Ironically, I think you are agreeing with the court right now - They don't want the power that the court has previously taken.
For all the consternation, these decisions are very mutable. Congress just needs to pass laws.
You are correct however on Bruen limiting the power of congress and the states.
It does? I thought it left it to the states.
In fact, congress could have codified access to abortion at anytime in the past 40-odd years.
> The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.
Seems pretty clear: it's for the states to legislate, not Congress, notwithstanding this:
> The Court overrules those decisions and returns that authority to the people and their elected representatives.
which clearly does not refer to Congress given the preceding.
That said, state laws regarding abortion almost certainly don't reach a) federal land within those states, b) interstate travel. Congress can easily fund abortion clinics on federal lands, and it can fund travel by pregnant women seeking abortions. So in a way, you're not wrong.
Well, they certainly thought they could: https://en.wikipedia.org/wiki/Freedom_of_Choice_Act
Article VI, Clause 2, also known as the Supremacy Clause[0].
Pushing responsibility to literally save the world onto a broken legislative body is idiotic.
For so long as the American people respect the US Supreme Court, their laws can be nullified on the say-so of this Court and are thus worthless. That's the underlying point of this whole suite of rulings.
Congress can write laws, the Court can decide they don't mean what you thought they mean, and, apparently, you will cheerfully conclude that the Court is wise and you're foolish, perhaps only realising the danger when it is too late.
So far this court seems to be largely giving more power to voters and their representatives to create law, limiting their own power (Dobbs), and giving power to the states.
This decision seems to give more power to Congress but on net I think it makes the laws Congress passes weaker because it strips away the effectiveness of the implementation.
People like to pretend that SCOTUS decisions are retroactively true, that somehow they're discovering legal nuances previously overlooked.
That's not how it works. As the cliche goes, they're not final because they're right, they're right because they're final.
FDR created the modern administrative state. Chevron was decided in the 80s. None of this is how it’s always been.
This is not some minor change, you're going to throw the federal government into chaos. I know that's the goal for a lot of people, but they should have the courage to admit that.
Wow, people are sure selective about which injustices they cannot tolerate "even one day longer".
> I support legal mandates to reduce emissions
Bullshit. You are doing the opposite and know perfectly well what's going to happen.
Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.
That limiting the administrative state is far from a monumental changing of the rules. Nobody is challenging the administrative state per se. The major doctrines principle is just being expanded, which limits Chevron, something that only came into being a few decades ago.
The effective reuslt of the non-delegation doctrine is that, when Republicans do not like a policy outcome, Congress is required to employ a time machine to give explicit instructions to an agency decades ahead of time.
These laws are all quite old, many pre-date the EPA even and are from the 1950s and 1960s. They were clearly written for toxic pollutants, which carbon is not.
No future for any of us I guess.
I'm not following this logic? Why do we need 100% of people to vote?
I assume you mean to "oust ineffective elected officials" but I suspect that there are many people that don't vote because they are "happy" and don't feel at risk of their desired official being outed. But again, I might be off base. Hoping you can clarify more of what you meant.
Having participated in several cycles of political organizing, the actual ground game is Get Out The Vote (GOTV): not trying to get people to change their minds, but getting people to just get off their asses.
Most of the public cares about climate change and wants the government to do something so long as it doesn't cost them anything (Or more precisely, more than 10 $/mo)[0]. Or you can just see the consternation about gas prices right now to predict how well any climate change related regulation that actually materially affected carbon production would go.
[0]: https://apnorc.org/projects/what-americans-think-about-the-e...
You say abdicate. Not true.
Congress is obviously empowered to delegate.
Please be specific. Who (written where?) thinks this is an open question? Please cite evidence of this.
This is also a common theme of many recent cases. Examples include: American Hospital Association v. Becerra, SEC vs Cochran, SEC vs Jarkesky, Gundy vs United States.
It is not clear that Congress can actually "delegate" the power to write laws.
Under a legal constitutional system, when Congress "won't act", the laws stay the same as they were.
The Executive branch taking unilateral action beyond its authority because the Legislative branch "won't act" scares me even more, for the long-term health of our democracy, than laws staying the same as they are now for a bit longer.
The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.
If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.
This is a win for industry.
Whereas before it was:
Do we have the political will to enact this from sea to shining sea via Federal legislation? -> YES/NO -> Can we enact this from sea to shining sea via fiat through an existing administrative agency? -> YES/NO -> Can we enact this from sea to shining sea via the SCOTUS? -> YES/NO -> Can we enact this policy gradually via the States? -> YES/NO
Now it is:
Do we have the political will to enact this policy from sea to shining sea via Federal legislation? -> YES/NO -> Can we enact this policy gradually via the States? -> YES/NO
The States themselves don't have the "malapportionment" problem, and insofar as Congress does, it's because the system was always set up for change to occur from the bottom-up, not the top-down. The EU refers to this as subsidiarity [https://en.wikipedia.org/wiki/Subsidiarity_(European_Union)]. Congress is structured in exactly the same way as the EU, as well as other federations like Australia and Switzerland.
If "we had a parliamentary system"--where the executive is selected by the Party that wins the most votes in the lower house--Bush still would have won in 2000 (https://en.wikipedia.org/wiki/2000_United_States_House_of_Re...) and Trump still would have won in 2016 (https://en.wikipedia.org/wiki/2016_United_States_House_of_Re...).
If 'we had a parliamentary system" Biden would be shown the door next year when Republicans again win a majority of not only House seats, but total votes for House candidates.
Trudeau can only govern with the support of the NDP. Liberals plus NDP got a majority of the popular vote[1].
[1] https://en.wikipedia.org/wiki/Results_breakdown_of_the_2021_...
It is a win for the anti-government minority:
* https://www.vox.com/2018/9/12/17850980/democracy-tyranny-min...
* https://harpers.org/archive/2017/03/tyranny-of-the-minority/
* https://www.orlandosentinel.com/opinion/guest-commentary/os-...
* https://www.politico.com/story/2009/03/the-tyranny-of-the-mi...
> If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.
Huh? Remember Ajit Pai? It hasn't been that long.
It's profoundly anti-democratic for major decisions to be made by unelected, unaccountable technocrats (with a comment period) than by actual elected representatives who can at least theoretically be held accountable through elections.
IMHO, the solution to this is probably just to pass a law that authorizes this regulation that simultaneously pays off the states who object so they feel it's an overall good deal for them (e.g. fund a nuclear plant and a bunch of new infrastructure for each of them).
They're not unaccountable, the president can dismiss them. Just like Trump fired Janet Yellen, and SCOTUS already ruled the structure of CFPB where removal for cause was required is unconstitutional.
The idea congress is "democratic" is a huge joke. There's a reason why the House of Lords has essentially no power any more. Let alone the literal open corruption campaign finance is.
It's pretty clearly designed to dismantle the federal regulatory apparatus
Typical staff sizes for congresscritters seem to be about 60 people. I managed to get some salary data on them, and $5M total per congresscritter seems to be reasonable [0]. So, I dunno, double that cost for ancillary expenses and the like, you get ~$10M per congresscritter. Multiply that all out and you have ~26,000 people and ~$4.4B total.
The total spending of the whole US federal government is ~$4T with ~4M people employed. So, ~1000x the budget and ~150x the staff of all of congress and their staffers.
Sure, yeah, you can double or 10x the staff of congress, even up the budgets by 100x. Maybe only 1/10th of the budget is actually needed. Maybe you can get by with giggling the staffer pay ratios. Whatever. You're still really short.
Oh, and you still have to have the staff that was doing the original jobs of the congresscritter.
Unless you completely rejigger how congress works to the tune of a ~100x increase in budget and staff[1], there's just no way congress can take over that job.
[0] There's not really a database on this that I found. I just took a random sample of 35 congresscritters and then googled for their staff sizes and salaries. It's not definitive and it varies a fair amount, but 60 seems to be a high yet good estimate.
[1] Imagine trying to grow any business or enterprise by 100x. It would take a very very long time for the dust to settle. Let alone working all the kinks out of the system that you're creating from whole cloth. And that's a new system. You'd also have the fight with the old system when trying to do this between congress and the exec. branch. The likelihood of it occurring in any kind of reasonable timeline and in any kind of reasonable effectiveness is precisely 0.
I would frame it more as a loss for the planet, at a time when we're facing the greatest existential threat in all of history.
This is the crux of the problem. The "Executive branch" is basically the cops. That leeway lets the cops invent law, prosecute you, and potentially imprison you. There's another case where the executive branch effectively acted as the legislator, cops, and the judicial branch (they prosecuted someone for a rule they created and found them guilty, all internally).
Congress needs to do these things, via simple and explicit laws that are clear and easy to understand. The role of the executive is _enforcement_, while the judicial arbitrates.
The whole point of this case is that Congress gave the EPA leeway to decide standards and scrubbing technologies for toxic pollutants, and the EPA stretched that leeway far beyond what Congress intended to address a completely different problem involving a non-toxic alleged pollutant.
You're arguing that the EPA gets to make that call. The supreme court says it's Congress.
Did I get that right?
It seems congress gave them limited power to regulate environmental protection via a law that was written. The EPA seems to have overstepped its legal boundaries in regulating. Instead of saying, "ah fuck it, let the machine run," the court is forcing congress to actually give it the additional power that it's been using, or to stop.
> The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shift- ing. Ante, at 31. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants. §7411(a)(1). The “best system” full stop—no ifs, ands, or buts of any kind relevant here.
They were given broad power by congress explicitly. If congress had wanted them to reign in that power or not choose the best system, then they could pull it back at any time. They did not. The court decided that the previous congress was full of idiots and could not fathom future technologies for emission reduction and therefore is moot.
But based on Egbert and Vega, there's now precedent for federal agents to perform warrantless raids, seizures, and arrests, without reading Miranda warnings, with no legal consequences.
[1]: https://en.wikipedia.org/wiki/ATF_fictional_sting_operations
The United States was "the first modern democracy". But we're running on shoddy, unpatched OS that none of the maintainers feel like fixing, and the users can't change the maintainers due to the rules.
Ideally:
The Senate would be gone.
Either gerrymandering would be dismantled, or state elections for House would be multi-member elections. The House would scale with population.
Justices of the Supreme Court would have a term limit of say, 18 years.
Constitutional amendments would not require such a supermajority of state legislatures.
The Federal government would have a standard for voting audits and take a more active role in protecting voting rights, since the ability for the Constitution to be amended depends on the integrity of state elections as well as federal elections.
Frankly, I don't see a way out of the slow death spiral this country is in without significant upheaval.
Going to be a lot of anger about the results this court season, but I honestly think it's going to be healthier for democracy overall if congress stop leaning on the courts and bureaucracy to make critical regulations.
In my understanding -- and I've read good chunks of the leaked Dobbs opinion -- the above claim is not true. The Dobbs decision's reasoning is largely based on a lack of clear federal legislation saying that abortion is legal.
Of course that ruling should cut both ways and eliminate the possibility of a federal ban as well, but as we've seen the majority is willing to overturn precedent both as old as 50 years and as young as 2 years (see Gorsuch dissent on Oklahoma v. Castro-Huerta) so its possible they would find the rational to uphold a ban even if they strike down a law mandating access.
When Congress passes a law, the law (sometimes referred to as the Constitution) gets amended, hence it is also referred to as an amendment.
Edit: ignore this comment, my information was incorrect!
There is a big big difference legally in the US between an Amendment and something in the USC
Essentially the same justification for why Congress could create the EPA in the first place allows them to codify any regulations as law or to extend the EPA mandate. What cannot happen is the EPA unilaterally deciding to overreach its mandate, because its taking actions with the force of law but without any check/balance. The Constitution is quite clear that laws are the purview of the Legislative, not the Executive, and the EPA is a function of the Executive.
Even if it was, there's no reason not to test it.
But states that don’t set their drinking age to 21 lose 8% of their highway funding.
By now, every state is in compliance, but some held out for years, and they could decide to change it in the future and forfeit the money.
Fascism by the way would be rule by fiat - eg a King or a Dictator can just declare new law: "I declare all Hamburgers shall now be served with bacon and anyone who fails to do shall be executed".
Writing down laws and having a neutral body interpret them is a really important part of fair forms of Government (but not unique to Democracy). There is no defense to a fiat in a Dictatorship but that is a defense in eg Democracy. The publishing, disseminating and authority of rules is the basis of a fair form of government.
The liberal justices are not a beacon of neutrality - they lean towards liberal policies and expansionist interpretations the same way the conservative justices lean towards conservative policies and paring down the Fed.
Fascism mixed with bureaucracy is extremely powerful and extremely difficult to fight.
Hopefully this article can shed some light on it for you.
https://www.deccanchronicle.com/opinion/columnists/290919/bu...
This is what I view is happening in the US.
Single dictators don’t mean fascism. That’s an extremely simplistic and playground view on fascism. Heck, single dictators are much easier to combat than democratic & bureaucratic fascism.
And I'm sorry but I'm going to reject the opinion column of a small newspaper as a source.
You're right in that Fascism is not just composed of single dictators but you are confusing the Rule of Law with beaucracy. Having a high court and requiring laws to be explicit is not "Fascism", it is literally the basis of the legal system.
A “rule of law” is a tool that can be used for evil. I’m not sure why we’re being blind to this?
Is it? Then why am I reading news today about the Democrats wanting to suspend the filibuster for a federal abortion law?
The fundamental problem is that large important social policy decisions have been made as court cases rather than legislation for the past 50 years. If Congress actually made laws that explicitly granted rights to the people then we wouldn't be in this situation, but by passing the buck to the court they can claim that problems have been solved without actually having to get their hands dirty or face their constituents.
The constitution does not confer the right to clean water and yet, it’s not unconstitutional for the federal government to make laws regarding clean water standards.
Whether it can be legislated at the Federal level is a completely different question.
I live in a rural area. There are plenty of laws that make sense for my area that would be ridiculous in high density cities and vise verse. Here there is no minimum speed limit and I can drive my tractor down the road by attaching an orange triangle. I can drill my own well. I can chop and burn trees on my property. None if thus would make sense in the city.
NYC can make rules for NYC.
States that are economically and politically dominated by a single economic zone are a great examples of why minority contingents need strong veto power.
They could even get ~2 Republican votes for broad abortion rights, and likely more if they passed a targeted bill about the health of the mother, incest, etc.
As recently as a decade ago the democrats had a supermajority and passed sweeping healthcare reform bills. It's really not an insurmountable barrier.
Delaware was the smallest of the 13 states with a population of 59K. That's 2.36% of the 2.5M total in 1776. There were 26 Senators so each one had about 7.7% voting power.
Today, South Dakota has a population of 905K out of 330M or 0.274% of the population. There are 100 Senators so each has about 2% voting power.
A Senator from South Dakota today represents 1/10 the population that a Senator from Delaware did in 1776. If influence scaled with the same distribution it did in 1776, a South Dakota Senator should only have about 0.77% voting power, but today they have 2%. Population distribution is more widely varied today which creates much more power for lower population states than when in the country was formed.
Abortion regulation powers were not delegated within the US Constitution and therefore those powers go to the states.
It's unfortunate that there isn't a stronger right to bodily autonomy enshrined in the constitution but that's tangential here.
There's still precedent and federal law that protects bodily autonomy in respect to having private medial exchanges with doctors.
We still have the FACE act for example, which is federal law preventing people from blocking the entrance of abortion clinics.
I think we'll find quite soon how much abortion is intertwined with interstate commerce.
Regarding bodily autonomy, it becomes a little tricky to make that argument when a mothers' decisions affect a separate body from her own. A body with its own DNA that happens to rely temporarily on her mother. Is the argument that a mother can kill her healthy child as long as it couldn't survive without her?
How can anyone say that with a straight face in the presence of the electoral college (heck even the elected representatives don't have a legal obligation to vote for their party's candidate) and most importantly gerrymandering. Your assumption that the people can vote to enact change is simply not true.
I don't think that scales. When some group of people is large enough and has enough different things going on it has to delegate regulation making. There is just too much for the top level of management to be directly regulating everything.
The larger the entity grows and the more it has going on the more regulation making needs to be delegated. At some point you reach the point where even critical regulation has to be delegated.
We passed that point, I think, a long time ago in all the large first world economies.
"It is within the power of the EPA to regulate carbon emissions"
and leave the rest to the bureaucrats, and that would have been enough. I don't think that's an unreasonable ask.
We can hope that Congress will step up and legislate, but that seems pretty unrealistic to me. I fear that this is just the latest wave of successes by the party that wants our government to be as toothless and inept as possible and already has a stranglehold on Congress for the foreseeable future.
Castrating the federal government will have negative repercussions. If the federal government doesn't have the power to control the states, then why bother having one?
populists are not 'everyone'
For example, I am hearing a awful lot of complaints about un-elected judges this week.
Search for the phrase "unelected judges": the results are all right-wing sources, literally starting with the Heritage foundation and Daniel Horowitz.
Over here in my media bubble I'm hearing a lot of complaints about judges who borderline perjured themselves in their confirmation hearings, "activist judges" (also a Republican talking point, now being used by Democrats to point out the hypocrisy of that talking point being used when the Heritage Foundation exists), "theocrats", and "destroying stare decisis".
"Unelected" doesn't enter into it, because of course judges shouldn't be elected, the whole point of the judicial system was supposed to be for them to be insulated from politics and focus on the law.
The results are r/shitliberalssay, r/conservative, multiple quotes from FOX News, r/roevwadecelebration, r/conservative, r/deplatformed_ (a pro-Trump QAnon crank) and Donald Trump himself.... One single story using the phrase in reference to the Dobbs decision was posted to a handful of leftwing subreddits seven months ago; otherwise it's almost exclusively right-wingers using the phrase.
But maybe our bubbles might be reversed.
Its some weird Schroedinger's legislature, where it is legally empowered to direct the executive, it chooses not to, and somehow, that choice is the executive's fault, and we need an activist judge to rescue us from it. Instead, of the normal process of 'if the legislature is unhappy with the direction of the executive, it could just issue a course-correction by passing a law'.
The republicans know they can't pass that law right now, so they are using the courts to avoid having to pass it. Then they'll seize control of the legislature in the midterms, and they won't need to pass it. The beauty of having a stacked court, is that you can sit around and do nothing, and not have to write any unpopular legislature, while you sit around and lay all the blame for any consequences of bad governance on appointed-for-life judges.
They are in fact doing the exact opposite - telling elected officials that you need to make and enforce laws - not give that responsibility to someone else.
Do you think the IRS should be able to set tax rates? then how is this different?
If Congress made a law that the IRS should have the power to set tax rates, then I'd be fine with them being able to set tax rates. Because I think that Congress should have the power to delegate a portion of their power, should they choose to.
This is a weird, and frankly idiotic ruling. Regulations are too complicated and numerous for Congress to decide on every single one. Have you ever read one? They go into excruciating detail about everything because they are written by experts. The best case outcome from this is that the new rules from agencies get tossed into some existing process so that they are rubber stamped, thus adding red tape.
Much of this is a result of the court's rulings (very directly in the case of Bush!), entrenching gerrymandering and making it harder and harder to remove the massively corrupting bribery for access that fuels the political system.
Deferring administrative decisions to congress is not a recipe for more democracy, but for more gridlock, and it hands a historically and internationally extremist faction the political victories they want anyway. It will generate Republican outcomes even from Democratic Party executives and congresses (like the current one).
That's not democracy.
I have to say that, as an anti-authoritarian, conservative advocate of individual liberty, this last week has been extremely inspiring.
To those who are confused about how the system in the US works: the court has basically decreased their own power with some of these decisions. That’s the type of thing that should give everybody, regardless of affiliation, hope about the future.
That ruling gave power back to the people and state legislatures. It benefit blue states as much as red.
Huh.
That sounds quite Stalinist. The people are not the state.
> So a state and its people would have the power to decide on something like abortion rather than a single centralized leviathan-authority.
Right, so your federal government is a centralised Hobbesian leviathan, but state government is not? How is state government not centralised? It's just centralised at a different level.
You know what would not be centralised? Allowing individuals bodily autonomy. Let them decide whether they want an abortion, not have them be forced to carry foetuses to term against their will.
In the general case of state vs federal sovereignty, state sovereignty is closer to the individual is and more malleable/escapable than a federal sovereign, and is thus preferable (state sovereignty was the original ideal of the United States and the founders go on at length about the benefits of this arrangement.)
just a few...
- long term planning of the gop vs short term tactics of dems
- justices staying on too long until it was too late
- bad (tone-deaf) campaigning for prez lost 3 seats on the sc
- ignoring rural and working-class (used to be the dems bread and butter) dissolved their base of support (clinton and the "new" dems)
- relying on the sc for too many rulings... next we loose gay marriage and probably interracial marriage in many states.....
That said, I highly doubt Loving would ever be overturned. It sits on very solid legal ground, and the most conservative judge on the court is in an interracial marriage. Obergefell is genuinely at risk though.
> I'm convinced they basically wanted to be able to continue to use the threat of a Roe overturn to steer swing voters to their side
> I highly doubt Loving would ever be overturned. It sits on very solid legal ground
> The case against the EPA was brought by West Virginia on behalf of 18 other mostly Republican-led states and some of the nation's largest coal companies. > > They were challenging whether the agency has the power to regulate planet-warming emissions for state-wide power sectors or just individual power plants. > > These 19 states were worried their power sectors would be regulated and they would be forced to move away from using coal.
I'm losing hope that anything practical can be achieved because of idealistic nuance like this. We're missing the forest for the trees. Our goal should be the larger combating of climate change, but individual players like this have amazing power to put up resistance or obstruction to that goal which is a net loss for all of us.
and putting more pressure on countries like China and India
Furthermore, this was the right decision. You can't just have the executive branch make up law. If Congress wants this, they can pass a law. That's how the US works.
But that whole business of singling out India and China is BS. If China was split up into 10 smaller countries that together emitted the same amount in aggregate, those 10 smaller countries would fly under the radar. It's only because China happens to be a single country that people point the finger. Per-capita emissions is the thing to be focusing on.
India's greenhouse gas emissions are 50% of those of the US. Per capita they are at 12% of the US.
BTW, per capita is the correct comparison because the atmosphere does not care about arbitrary boundaries. To illustrate imaging a world with just 2 countries, one emitting X per year and one emitting 2X per year. The population of first county is P and the population of the second country is 2P. In this example we'll assume little trade between the two countries.
That world needs to get down to a total of 2X per year. If we do thing per country that means each country gets to emit X per year. So the first country is fine where they are and the second country needs to cut emissions in half.
To the people of the first country they just continue their normal lifestyle, which generates X/P emissions per capita. The second country has to go from X/P per capita to 1/2 X/P. They will need to make big changes that will likely greatly reduce their standard of living.
But then separatist parties, upset with such a big blow to the standard of living, come to power in the second country, and it splits into 9 separate countries, each with population 2P/9.
In this new 10 country world, each country's share of the global 2X emission budget is 2/10 X. To meet this the first country has to cut per capita emissions to 20% of what they were before, requiring drastic changes in their economy and lifestyles.
The 9 new countries on the other hand only have to each cut per capita emissions to 90% of what they were before. Their standards of living don't have to change much.
...and now there are strong incentives in the first country to split!
This only ends when you reach a configuration where every country has the same per capita allowance.
Trade complicates it, because now emissions in one country might be going toward doing things for the other country and so should be counted toward the other country's emission budget. That can be dealt with by something like a cap and trade system so countries can trade some of their emissions budget to cover emissions done for them in other countries.
If something like that can't make it through congress then it isn't democratic, and the task then becomes one of convincing the other side. I've the had the anti-coal conversation with plenty of conservatives and they were all open to my point of view.
Ultimately this court's decision is a win for democracy, even if it is a (temporary) step back for fighting climate change.
The elimination of earmarks has made politicians more dependent on the party and good grace of industry for their elections so they have to tow the party line harder and cater to the lobby more whereas back in the day people could vote against their party if they were bringing home something else to make it worthwhile.
I strongly suggest his research[0].
EDIT: Oh, and my friend[1] who does a lot of the research is a ex-NASA scientist, which is one of the reasons I also got excited about his research, as I studied electrical and computer engineering in college and was excited to see an engineering mindset applied to political dynamics.
[0]: congressionalresearch.org
Ah, yes. The institution where 41 Senators, representing a mere 22% of the US population can block legislation is the zenith of democracy. Especially when considering the legislation we're talking about is as a response to a court case ruled by 6 judges, 5 of which were appointed by presidents who lost the popular vote, approved by senators representing fewer citizens than the senators who voted against their approval. Real nice system of democracy.
Congress isn't democratic. Congress is overly concentrated.
To begin with, the Senate is absurdly anti-democratic. The 710K residents of Washington, DC don't get a vote there at all. The 600K residents of Wyoming get the same 2 votes as Vermont (620K) and California (39 million). Anything that says that Texas and West Virginia are equal to each other in some mystical sense of having equal weight in decisions that affect the whole country is an ideology not compatible with democracy.
Then, the House of Representatives is (a) absurdly gerrymandered and (b) absurdly undersized. One rep per 750,000 people on average, up from one rep per 210,000 people in 1909 and up from one per 34,000 in 1800.
Any Constitutional "originalist" who thinks that the House of Representatives is just fine at 435 reps is a hypocrite. At one per 34,000, we need about ten thousand reps to meet the standards of representation that the founders thought was reasonable.
Oddly, that would solve the other major problem with the House of Representatives: the 2 year term is fine if the rep only has to persuade the majority of 34,000 people or so. A small campaign can win. A simple requirement that all districts must be compact, convex and allocated according to a geographic/population algorithm would cure the gerrymandering, too.
It's completely compatible with democracy, and makes perfect sense under federalism. The federal government was not meant to have the expansive powers it does; the problem is that via things like the commerce clause it's massively overstepped the boundaries that were supposed to contain it.
"supposed to" is in the same light. The system that worked pretty well for about 5 million people in the pre-industrial age (and assumed that everyone not male, white, and a land-owner was distinctly second-class) does not work so well 200 years later in a world power of 330 million people.
This is blatantly false. The 1800 Census has Virginia with a population of 676k persons (~340k free), with Delaware and Rhode Island having only 64k and 69k respectively. Their economies and 'power' (state militias?) were also nowhere near equal.
The senate was setup specifically because of that disparity, and was designed to prevent larger states from imposing their will on smaller states.
Every individual state is _supposed_ to be sovereign. They hold equal legal status to each other. That's why they are explicitly granted equal suffrage in the Senate.
The fundamental disconnect here is that people from your perspective view the federal government as 'the government', when it was never intended or designed to be that. The federal government was supposed to operate in a much smaller capacity than it has for the past hundred years, with the vast majority of its current responsibilities handled by the states.
> "supposed to" is in the same light. The system that worked pretty well for about 5 million people in the pre-industrial age (and assumed that everyone not male, white, and a land-owner was distinctly second-class) does not work so well 200 years later in a world power of 330 million people.
Says who? There is plenty to criticize about the US government at all levels, but, as someone who no doubt regards American Exceptionalism as an outrageous trope, how else do you explain the success and dominance of the US worldwide? It is, without question, the most powerful, wealthy, and successful country to have ever existed in history.
The US is not exceptional or unique in its history of slavery, natural resources, population, or landmass. As one of the few things unique to the US, it's entirely reasonable to attribute at least part of that success to our form of government.
edit: And, by the way: slave-owning states favored proportional representation in Congress. They were growing at a much faster pace than the northern states.
That's a single order of magnitude from top to bottom.
The smallest states are now the population of VA in 1800, and the largest are now two orders of magnitude larger than that.
> how else do you explain the success and dominance of the US worldwide? It is, without question, the most powerful, wealthy, and successful country to have ever existed in history.
It is:
* Exceptionally large. Russia is twice as large. China, Canada and the US are all approximately the same size. Next is Brazil and Australia, and then there's another factor of 2 drop.
* Exceptionally gifted in natural resources. Between ocean ports and navigable waterways, transportation was easy to exploit. During the agriculture-first age, huge herds of bison roamed free. Oil and gas and coal are available. Most metals and minerals are here. The climatic zones available for year-round habitation are huge, and the deserts are not.
* Exceptionally un-invadable by the powers in the world at its birth. The native Americans were devastated by disease and weapons. Every other human threat needed to lug their troops over an ocean before starting to invade. The War of 1812 was an expensive fizzle for the British.
* Compound effects from the above produced a robust economy.
* Being across an ocean meant that the US could pick and choose when to enter the World Wars. Even after Pearl Harbor, FDR could delay entry until industrial processes were engaged to a wartime footing.
But the American domination really started at the end of WWII, with all the European countries and Russia and China and Japan facing major rebuilding efforts, while the US was largely unaffected.
None of that requires the Constitution to be exactly the way it is. Would it have worked better as a multi-party parliament? I think so. Would it be less effective as a theocratic fascism? I hope we're not about to find out.
How is that hypocritical? The Constitution says "The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative". The fact that we're not near the upper bound doesn't make it unreasonable. If they thought a reasonable representation would have required some lower bound other than 1 per state, they would have written that.
We've now learned that the supreme court will take up a case concerning the "Independent legislature theory" which, if affirmed, would allow state legislatures to unilaterally overrule their constituent's votes in both state and federal elections.
I can't wait to see the majority maintain its staunch pro-democracy stance that it takes in this case in the terms to come.
The EPA is not a legislative body. If you want to make it illegal to run a coal plant because you feel like it’s your duty to force some pain on the citizenry for what you perceive as a higher calling: pass a law.
That means forcing Congress to accept its role and do its job instead of being a place where the members spend most of their time fundraising and trying to keep their seats.
No, stopping the coal plants is the end goal. Whether it's by saving energy or building alternative sources like solar/hydro/nuclear is irrelevant to the EPA's goal (protecting the environment/mitigating climate change).
Innovation will not save us, the tools have been here for decades.
I agree this should be passed as a law.
We’ll have to find other mechanisms to force coal plants offline. Lots of tools available besides the EPA.
Sounds like maybe you don't believe in democracy
So, here we are.
https://www.foxnews.com/politics/mitch-mcconnell-dark-lord-s... (the Fox News article slug even refers to him as the dark lord)
(well, "funny")
Each party's advocates say "the other side has been playing to win rules and democracy be damned for decades, and if we don't start ignoring the rules and playing dirty, they'll kill us all".
Each side claims to love democracy but to be willing to destroy it only because doing so is necessary to protect them from the Enemy.
I think that maybe most people don't actually care about democracy, they just want to win the war.
Take care, good chat.
Indeed, the founders cared so much about this that they wrote into the Constitution a guarantee not of a democratic form of government for the States, but a republican one
U.S. const. Art 4 Sec 4:
> The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
In theory, this guarantee could be satisfied by entirely nondemocratic governments, so long as they were republics. Courts have not really tackled too many of the details of this clause over the years, primarily on the grounds that the courts largely feel that they are unable to offer remedies. (https://constitutioncenter.org/interactive-constitution/inte...)
I think you need to take a look at federal controlled substances policy. Even with resounding majorities in favor of various degrees of changing things in a particular direction the small steps that everyone can agree on still don't get done. The incentive structure for implementing popular change is broken and the difference between 50.0001% and 60% doesn't change that.
I think I would argue that the simplest first cuts to untying the current knot are to rethink the whole "legal bribery of elected officials" thing and find a reasonable way to enable multiple parties so that coalitions can align along a more complex set of needs than two sets of (absolutist) wedge issues.
Voters overwhelmingly want regulation on climate change. 41 senators representing roughly 22% of voters don't.
> Sounds like maybe you don't believe in democracy
if you're going to make snide remarks you better be accurate in your claims.
https://www.pewresearch.org/fact-tank/2022/03/09/americans-l...
Nobody wants what you described. Global warming is literally killing people by the thousands every year now. Wars are coming, mass migrations and climate refugees. This is a crisis, it’s just not a localized one. And it doesn’t have to be painful. Building + running windmills, solar, even nuclear, those are all good jobs.
You might just as well frame it “if 19 states want to make the world suffer so a few corporations can profit and people don’t have to re-train”.
>Nobody wants what you described
Do you think everyone hear has the memory of a goldfish or are you just lying to us without a care in the world?
We can literally go into any HN thread on the subject of coal and see tons of comments to the tune of "this will cause people a bunch of pain but outlawing X, Y and Z or taxing them to create the same effect is necessary in order to get off of fossil fuels therefore it is necessary for the greater good". I don't disagree with the premise that it's gonna hurt but just turning around and saying "nobody's saying that" when it suits you is beyond bad faith behavior.
People like you are just as bad for progress as the coal lobby is because you undermine the people telling it like it is.
As I said, nobody wants that. Emphasis on “wants”, emphasis on “that”. The same people calling for climate action are the ones calling for a just transitions - UBI, green new deals, etc. so if they were to get their way it wouldn’t actually be painful. That’s the “wants” part.
But even if we don’t get those things, it actually has to happen - it’s not some random desire. It’s an existential threat to human life. So, it has to be done at whatever cost. Not because they “believe in some higher calling” - because the facts are that this is going to hurt everyone if we don’t deal with it at great scale asap. And that’s the “that” part.
You do know that coal power kills more people than any other power source right? That makes health care a hidden cost, paid by the citizenry, to subsidise an irresponsible energy industry.
Think much?
Then pass a law.
I hope every coal plant on earth goes away forever. I hate coal plants. Get rid of them and PASS A LAW restricting their use.
We don't have the luxury of proceduralism any more.
Hamstringing the EPA over a contrived technicality in the wording of its charter is a travesty of justice. It's public utility is obvious. It's in the name.
So what? Not the SC's problem.
> Most people can agree about its merits but it's naive to act as if special interests haven't manufactured the contention and captured the regulatory and legislative processes.
So if special interests have captured the regulatory body, how is letting them keep (or gain) their unelected power any better?
> We don't have the luxury of proceduralism any more.
I can use the same argument about any topic we disagree about. Do you not see the problem with this line of thinking?
Indeed, it's precisely to the contrary and actually to the new SC's advantage. Republican obstructionism is precisely why conservative judges have adopted this new commitment to originalism. But on the other hand, isn't a clean environment a problem for us all?
"So if special interests have captured the regulatory body, how is letting them keep (or gain) their unelected power any better?"
Because this executive has been trying to fix it (https://grist.org/politics/epa-joe-biden-environmental-law-e...) and congress has been trying to keep it broken (eg. https://thehill.com/policy/energy-environment/589767-gop-sen...). This ruling takes power away from the executive and hands it to an even more captured, paralysed congress. Whether the EPA derives its mandate from the executive or the legislature makes no difference since BOTH are elected bodies. Why mindlessly repeat that red herring? Obviously the real issue is whether it's effective and working for the public interest or for special interests.
"I can use the same argument about any topic we disagree about. Do you not see the problem with this line of thinking?"
No you can't, except in cases where the importance of the procedures themselves are outweighed by the importance of what they are preventing. For a decade the SC was okay with the EPA using the clean air act to limit carbon, and then it wasn't. The only thing that changed is the political constitution of the court which has exploited technicalities and procedural hurdles to prevent the addressing of an urgent, existential threat. Or is it just a coincidence that the sudden desire for more carefully crafted legislation comes from conservatives who have always opposed stronger environmental regulation?
It's a pretty narrow, justified case I'm making against excessive proceduralism. Do you not see a problem with checking tickets for lifeboats?
I see it on a micro level of people trying to kill insects that get into their gardens or moles that ruin their lawns, and a more macro level of my state/country has coal underneath it and therefore we shall fight to continue to use coal or even my state/country doesn't have a lot of arable land for agriculture because of permafrost or access to non-frozen ports for shipping so increasing global temperature may actually be good for us.
A person may value a coal mine for a variety of reasons that are very emotionally hinged: economic, familial, etc. To change behavior values and attitudes have to change. That's exceptionally difficult when the competing values, like climate, are more abstract than the ones currently held. I worry that humans are not psychologically equipped to manage problems of this scale.
> That's exceptionally difficult when the competing values, like climate, are more abstract than the ones currently held. I worry that humans are not psychologically equipped to manage problems of this scale.
I think we may be equipped, as we've handled problems on much larger scales than I think our ancestors would have expected, and yet I hear you, wondering what (if anything) could change to make us more equipped.
I wonder if reframing our identity could help. Instead of me only being a coal miner or Michigander, I'm also more connected with my human identity. Maybe more backwoods experiences, watching and living TV shows like Alone or Naked and Afraid...I dunno. I wonder if we don't actually have to try to connect to the planet but just more deeply to our local wildlife and to ourselves.
This requires a level of emotional adjustment and self awareness lacking in many people.
This is why democracy is so hard: it consistently yields outcomes that are disappointing to a large segment of the population. There is no "solution" to that problem, and shouldn't be. There are pathways to curbing carbon emissions, but the reality is that too few people, as a body, want to pay that price.
Stopping climate change should be everyone’s mandate. When your house is on fire and a neighbor has a hose pipe, so you get into an argument with them because they’re not a fireman?
The problem is that people want to handle this "on the cheap", by executive order, rather than by the actual existing mechanism, which is through Congress. Yes, Congress created the EPA. They didn't give them the authority to regulate CO2, though. That was an overreach when the executive order came out, and that reality finally caught up legally.
You want to regulate CO2? Then do it the right way - by having Congress pass a bill that grants that power to the EPA. That's the difference between rule of law and rule of the president.
You say those states have too much power? No they don't. There's only 18 of them. That's only 36 senators. They don't have a majority of the House, either. So go do it the way it should have been done from the beginning, instead of trying to get away with using a lazy back door.
[Edit: Reading other posts here, the issue may not have been CO2 emission, but rather management of the electrical grid. I still think that CO2 was a massive over-reach when the EPA started regulating that. It was almost certainly beyond the scope that Congress conceived of when they created the EPA.]
The Supreme Court is different from the other branch of government heads, in that they decide for themselves what their mandate is, and you don't have any recourse ... unless you're in charge of one of the other branches, and are willing to cause a constitutional crisis by ignoring them or replacing them.
If we really cared about getting this done, we'd simply pay ~$30B/year (0.14%) to enter a contract to buyout 100% of US coal production, and avoid it getting burned.
The problem is that China would simply replace that production, netting zero for the environment.
Sure, maybe, in an ideal world we want congress to pass laws in the place of every single regulatory body. (This in and of itself is totally unclear to me).
However, the reality is that by getting rid of regulatory agencies we prevent important limits from being enforced.
I mean, read this part of the dissent: > Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance’s emission from existing stationary sources.
There's a backstop in place to allow the EPA to prevent pollutants from fucking us up. Ideally it would be regulated through a formal program. It's not. Does that mean we should just get rid of all backstops & regress to the stone age?
As someone very pro renewable energy obviously I would prefer a different outcome, but the good news is that these types of power sources are just plain uneconomical these days, so their shutdown is going to happen anyways. Perhaps renewables won't have as many regulatory assists as we hoped, but the good news is that they can stand on their own, and the clean power industry keeps building better systems then capitalism will take care of the transition for us.
[0] https://reason.com/volokh/2022/06/30/supreme-court-rejects-b...
'WASHINGTON—The Supreme Court on Thursday curtailed the Environmental Protection Agency’s powers to restrict greenhouse-gas emissions from power plants, in a decision that could limit the authority of government agencies to address major policy questions without congressional approval.
Elaborating on earlier decisions, the high court said federal agencies need explicit authorization from Congress to decide issues of major economic and political significance, drawing on a principle known as the “major questions doctrine.”
In his decision for the 6-3 majority, Chief Justice John Roberts said Congress never gave the EPA the authority to change the methods a power plant uses—regulations known as “generation shifting” requirements.
Chief Justice Roberts said that forcing a nationwide transition away from coal may be a “sensible” idea, but the EPA cannot do so without a clear authority from Congress.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the chief justice wrote, adding that the “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute.”'
Protester: "6 unelected officials can't decide what I can do!"
Supreme Court: "That's literally what we just said!"
If Congress punts issues around indefinitely for its own political wheeling and dealing, it still cannot outsource a decision on those issues to other branches of the federal government. Whether thats to the executive branch or the judicial branch. Not hard! Except more of your elected representatives!
If consensus is impossible then that's the reality we live in, the means won't be able to justify the ends, you have to work within the consensus mechanism prescribed on every topic.
> Supreme Court: "That's literally what we just said!"
Bullshit. The court was perfectly happy telling millions of people they had no right to an abortion. They’re just a bunch of partisan hacks
Congress outsourced the decision to the judicial branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
Congress outsourced emissions decision to the executive branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
This is not what happened at all. They ruled against the federal government's ability to regulate it.
None of this had anything to do with the federal government regulating it. It was the court saying it was a right not to be infringed upon.
Roe v Wade was ruled on the basis of the 14th amendment due process clause regarding the right to privacy. Anyone who thought this ruling was an iron-clad blanket right to abortion was fooling themselves.
Abortion is not specifically enumerated in the constitution. Just like everything else not in the constitution, it's up to States to make their own laws regarding it.
Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.
The judicial branch has a responsibility to itself for self-consistent reasoning, which it has completely abandoned this term.
The court is not supposed to change dramatically with every election, that’s what the legislative branch does. And yet, the court did.
It’s legal of course, the court can do what it wants. But it can (and has) lost approval and legitimacy, which at the end of the day were it’s most valuable currency.
Opposing sides of that court have said the exact same thing about Roe v Wade. Ruth Bader Ginsberg even said "this is pretty weak, going to need Congress here", no different than Justice Alito on the opposite side.
I think your perspective is very common, I think it is disingenuous for different people that should know better to promote that perspective. There is so much the elected representatives and the people can do. This crisis of confidence perspective relies on nobody actually reading these cases.
The Supreme Court has acted as a second Congress for a wide variety of things. This is how miranda rights happened. This is how contraception was legalized. This is how homosexuality was legalized. This is how race integration was legalized. ETC.
(As just one, like interstate commerce, will keep it on the chopping block by the same court)
also, currently people need to be challenging laws and the court has to accept those challenges, if there isn’t political will to still challenge those things then the cases will never happen
I agree that Congress or the consensus mechanisms of the states are more accurate authorities.
I also agree that it is wildly disruptive to do this. But for that I empathize, and hope to inspire on other ways of consensus making.
SCOTUS leaned liberal (in the sense that liberal justices tend to believe in larger-scope interpretations of Constitution) for a long time, now for the first time in a while they're leaning conservative (the Constitution says what it says and if we want it to say something different Congress should pass an amendment).
Honestly I find myself falling into the more Conservative camp from a judicial perspective. I'm all for gay marriage and a woman's right to choose, but I feel like we used SCOTUS to do an end-run around Congress to get both at a federal level, and from my layperson's reading the constitutional justifications for both feel stretched to me. In the same sense that you can use creative interpretations of the Bible to justify basically anything, you can do similar things with the Constitution. That isn't how the system is supposed to work
The court as an institution has a responsibility to maintain some sort of consistency if it wants any legitimacy.
How can people make decisions about where and how to live if their fundamental rights are changing year to year (and most recently being taken away)?
You are also not aligned with the current public opinion. The court is at its lowest approval rating ever, and that is before overturning Roe. If the court cannot maintain it’s appearance of legitimacy then it essentially fails as an institution. The court could have chosen to move more slowly, with more restraint, but it didn’t.
And you can say "yeah but racists were the bad guys", but that's not how any of this works, regardless of what narratives we decide to apply to history after the fact. Did the court's lack of perceived legitimacy in Birmingham or Little Rock (among many other places that required less extreme enforcement) cause it to fail as an institution?
The court only fails as an institution when it's decisions are no longer enforced. Last I checked we haven't reached that point yet. And even if we do, worth remembering SCOTUS survived the last civil war intact.
Or the court can function perpetually against the public will?
We can't be opposed to police creatively interpreting laws to target minorities and be okay with the EPA creatively interpreting laws to target fossil fuel companies. Just because the latter is in the service of a good cause doesn't make it legal. The ends do not justify the means--down that way lies peril.
This is just nakedly partisan stuff going on. I think viewing it through that lens - "we're going to do what we want because it fits our politics" - makes the most sense.
The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent).
Now all that technical debt is coming back to kick our ass.
This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
Proper laws are no match for calvinball rulings.
EDIT: RE: no right to poop(sic) in the constitution
It's a list of things the government may not do, not a list of things you may do. Try reading it, it's very short. I would imagine the court would rule a law against that would violate the right to life.
EDIT: It didn't need to be acknowledged because there wasn't a strong push to disarm the population until fairly recently.
EDIT2: It looks to me like they only really go back to just after the civil war, largely to keep African Americans from carrying firearms. The first attempt by the Federal Government to ban them was in the mid 20th century which was exactly what I expected.
EDIT3: James Madison tried and failed to pass the legislation (presumably because it was unpopular), at the state level (not federal level) and it didn't prevent people from owning guns just carrying them in public.
EDIT for your edit: Huh? When I was a kid in Texas way back in the 90's, it was illegal to carry a gun period. You could take them out hunting or to the range or whatnot, but carrying a gun was illegal. The first concealed handgun law was 1995 if memory serves. Carry bans go back to the colonial era.
https://www.politico.com/news/magazine/2022/06/26/conservati...
The Ninth Amendment basically says "this isn't a list of all the rules".
There's no right to poop in the Constitution. Do we have one? If Congress banned pooping, how would the court rule?
And yet, they saw fit to include the Ninth Amendment, so some nincompoop wouldn't go "there's no right to privacy!"
> I would imagine the court would rule a law against that would violate the right to life.
The wording is "nor shall any state deprive any person of life, liberty, or property, without due process of law"; what happens if pooping is made a capital crime?
Why is banning abortion, marijuana, and whatnot not a similar violation of the "liberty" part of the same clause?
(and what's with this edit-to-reply thing you've got going?)
The parties of 1971 were both very different compared to today. You can't assume that someone active in the party in 1956 (Brennan) holds the same values as what's talked about on OAN today.
SCOTUS deliberately kneecapped the Voting Rights Act quite a bit in recent years. For example: https://en.wikipedia.org/wiki/Shelby_County_v._Holder
Legislation isn't much protection from a nakedly partisan Court.
I think the temporary pain will be worth it in the long run as we do the hard work to pass the laws the majority agrees will improve the environment, human rights, and so on.
>This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
No, this us pretty much what the end of the world looks like.
Taken as a relative claim, it at least could make sense. But relative to what?
Relative to the US? False; both parties usually get about half of the vote, suggesting one is to the right of the median American, and the other to their left. You can probably argue that the Republican Party’s structural advantages cause both parties to be a little to the right of where they’d be without them, or that Americans’ ignorance of party platforms means you can smuggle a few points in that are slightly more extreme than what they’d endorse, but it’s going to be a small effect.
- https://astralcodexten.substack.com/p/against-there-are-two-...
Can it?
In principle, sure, anything can happen.
In practice, given how it's not possible to pass any legislation without a filibuster-proof majority?
As others have commented in this and related threads, this is a win for industry precisely because congress CAN'T do anything in practice, given the reakpolitk of how congress actually "works" today.
I wish folks would stop saying "well, it should just go back to the spec, problem solved". This isn't code. This is the convoluted and complex world of political reality, where, unfortunately, might does often mean right. And more often than not, addressing the root cause isn't even possible, much less practical.
If anything, it's the current supreme court that is taking a binary view of legal interpretation and have "fixed the glitch". Glitches which in reality are patches which have been added organically over time to address changes to the underlying OS, new and unheard of use cases, changing specs and requirements, etc.
Unfortunately, a full rewrite often requires systemic overhall and reboot (something I would hope people are averse to doing in practice)
Dream on. You're trolling right?
If you don't think they'll call any regulation (or enumeration of rights) they don't like unconstitutional, I don't know what to tell you.
It's abundantly clear from the Dobbs majority opinion they will not accept a Roe statue from Congress, that they would overturn it on 10th amendment grounds. It's not an express power Congress has, thus it's strictly up to states. Since they also stated in Dobbs they'd use rational basis scrutiny, the lowest scrutiny possible, when judging state laws on abortion restrictions, I expect they will accept state laws that:
* define moment of conception as murder
* fetus as citizen in fact, meaning out of state abortions are also subject to murder charges
* high burden of proof on women, low burden of proof for the state, that a miscarriage rather than abortion occurred
* hold abortion-is-legal states to article 4, section 1 "full faith and credit", i.e. civil fines and extradition for persons fleeing judgements in abortion-is-not-legal states
* hold companies paying for abortion procedures and travel as party to a crime
The Court is lost for a generation, short of expanding the Court. There is no chance 3/4 of the states will ratify a constitutional amendment on this issue. And there's a lot more litigation to come.
And should it come to the Court, I expect they will set aside Griswold, Lawrence, Obergefell using the same logic - it's not a federal power. How they could possible not reverse Loving, I'm not sure, except that likely no state is as yet backward enough to try and making interracial marriage illegal once again.
I think there is merit in the argument that we've been asking the Court to be expedient, while then not doing the dirty work of putting these rights in constitutional amendments. Instead we're kicking the can down the road, but then we are also avoiding a lot of public contention arguing about it - for good and probably not for good to some degree. But look at the polling. Most Americans now disapprove of the judiciary nearly as much as Congress. With all three branches of government at historic low approval, it is very damaging to representative democracy that this has happened, not least of which is that an unpopularly elected president put these three justices on the Court who lied under oath that these cases are "settled law", and yet just deeply unsettled one of them.
As opposed to shaky electoral/gerrymandering grounds
Reverse Wickard, and put the Federal Government back in its narrow scope
https://twitter.com/cristianafarias/status/15414273388266291...
The photo on the bottom right was from before the coach was asked to stop giving post-game talks that included prayer, an order he complied with. It is not the behavior at question in the court case, so absolutely irrelevant to the matter at hand. I think Sotomayor should have included a date on the photo to make this clear.
Photo on the top right is of the coach being joined in prayer only by members of the opposing team, so if he was coercing the players on his own team, is was quite ineffective. It was a silent prayer, so yes, quiet.
Photo on the left is the coach being joined in prayer by members of the public, not team members, so also not good evidence of coercion. Also a silent prayer, so yes, quiet.
[X] Doubt
Blockade of judges started in 2001, when Democrats declared Bush illigetimate, and decided that no judges would be selected. Republicans threatened the "nuclear option" (removing fillibusters). The "Gang of 14" in 2005 wrote ideological ground rules and approved a set number of judges to keep the nuclear option from being used.
Obama came to office, and the Democrats used the nuclear option - despite the gang of 14 framework, but then said that it doesn't apply to supreme court ballots. Republicans came in and decided that yes, it did apply.
We've been destroying our own government with crap like this for the last 20 years.
Partisanship is a hell of a drug.
Let's not pretend that the current situation represents anything like "normal", and further, that we don't all recognize that bad-faith actions by the Republican party are responsible.
Yeah, that's because change happened.
Pretending that something can't be done because it worked for hundreds of years and then something bad happened isn't actually very correct.
The court has been an illegitimate and partisan body ever since Garland's seat was denied.
It's a much bigger problem then just this.
Yes, it was. What's your point?
Parent poster claimed that a non-political Supreme Court isn't possible, and in reality, the Supreme Court has been essentially completely non-political for all but about 22 years of its existence
It’s not their job to write laws or advance policy, it’s their job to enforce the constitution as written.
A textualist reading of the First Amendment would permit the President to infringe free speech/religion/press etc. rights, as it says "Congress", and the "no law" bit would texutally forbid things like banning human sacrifice in religious ceremonies.
Textualists always find an out when they need one.
Humans will always bring bias, but I can’t think of anything better than “interpret as it was plainly written and would have been understood by the people who wrote it at the time”.
> Do you have a better suggestion that’s less partisan and less prone to abuse?
I'm of the opinion that textualism, in actual practice, is a highly partisan and heavily abused concept intended to be a thin veil over "I rule the way I want". I prefer the concept of a living Constitution; per Jefferson:
> I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
A textualist reading of the Second Amendment doesn't permit banning of personally owned nuclear arms.
Textualists don't seem too interested in overruling the relevant unconstitutional laws in these cases.
(Yes, I've read it. It's vague - deliberately, I'd argue - in spots, like in defining "general welfare", and some folks like to pretend things like the Ninth Amendment don't exist at all.)
The incestuous relationship between the judiciary and the legislative branch in common law systems is very problematic and does not allow true separation of powers. Like so much in our democratic governments, this works as long as most participants behave in good faith, but breaks down when some do not.
> instead of treating it like a second version of Congress.
Instead of laws on reproductive rights, you had a ruling even detailing the time frames in which abortion was legal.
Instead of legalizing gay marriage, you have a ruling on the federal recognition of licenses issued in individual states.
Instead of a law on lobbying, you have a ruling saying that monetary contributions to campaigns are the free speech of lobbying groups.
Instead of an organic law on weapons permits, you have a ruling saying what kinds of firearm regulations states can pass.
But people can't say this politicization of the SCOTUS is new; back when the hot topic were worker rights, in the early XX century, those were the battles being fought there, to skip Congressional debates:
https://reason.com/2021/12/02/the-laissez-faire-origins-of-t...
The Supreme Court is like a compiler simply running the instructions it's been told. It doesn't have any input over what's written.
Historically, people have used the Supreme Court to create laws, circumventing the voting process and giving 9 people oligarch-like power. This is not ideal.
There's also the general expectation the Supreme Court should do what's "right" which again, isn't a relevant metric for judging whether something is constitutional. The Supreme Court at its best is an amoral, apolitical institution.
Snark aside, there’s a reasonable case to be made that Congress has been increasingly treating the judiciary as a super-legislature. Far easier to avoid the work of compromise etc. when you can punt it to the USSC. Whether that’s pure laziness or something structural based on a reduction of overall party power is up for discussion.
The politicization of the Court is a completely bipartisan affair going back 4 decades at least.
We might even say it goes back 8 decades, to FDR's threats to pack the court (see "a switch in time saves nine").
And we can find many earlier examples as well.
I’ve never understood why the Democrats are painted as the bad guys interfering in a non-partisan appointment of Bork. Nominating Bork was an insane act.
It is a side-channel for lawyers and activists on all sides of the political spectrum to achieve what they couldn't achieve in the legislature.
Judicial review was a mistake.
Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way.
But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value.
Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.
It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
> You also ignored my example of 2A
Sure, because everyone does. The number of people arguing bans on personal ownership of nuclear arms are unconstitutional is... small. Even originalist/textualists seem to agree it's by no means absolute.
> Sure, because everyone does.
I don't think this is a winning argument. The fact that one argument - and one thought important enough to enumerate actually explicitly - is frequently ignored doesn't support the idea that another unenumerated one exists, and quite possibly the opposite.
More specifically, most Roe supporters have been ignoring the "bodily autonomy" philosophy all along, and more recently even going directly against it. It would seem that it's no more absolute than you believe 2A to be.
As I wrote elsewhere in this thread:
1. Have you taken to the streets protesting when people, even after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the "bodily autonomy" argument behind Roe is false.
So, how does the government get the authority to take marijuana off the table? How do they get the authority to take any other treatment off the table? And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
This all seems to be the same argument, so why don't I hear very many Roe supporters arguing for the freedoms I referenced above, or at least providing answers to my questions? What's the principled line of philosophy that supports a freedom to abortion without also recognizing a right to medicinal marijuana or passing up a covid-19 show (when either is done under doctor supervision)?
Roe also makes it quite clear it's not absolute:
"A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."
> So, how does the government get the authority to take marijuana off the table?
For the same reason as Roe highlights above; that the right to privacy is not absolute. I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
> And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
They don't, and they haven't.
I think that's true directionally, but not quantitatively. I haven't seen riots about marijuana, or claims that SCOTUS is corrupt.
And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy. Admittedly, there may be differences in scale of risk that lead to this difference. But the rhetoric we're hearing today seems to frame abortion rights as an absolute with no room for such finesse. And I think it is on them to explain how to draw that line.
So? "You can only say it's a right if you riot about it" is a weird position to take.
> And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy.
I don't know what you think the leftist position is on this, but no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19.
Virtually all states require quite a few vaccinations - measles, mumps, rubella, etc. - in public schools. Once again, Roe doesn't rely on "bodily autonomy", and any such right is very clearly not absolute (as Roe itself makes clear about privacy). My autonomy to swing a knife around ends when it hits your face.
Thought experiment: Do we have a right to poop? Can Congress forbid me from pooping? How would SCOTUS rule on a law banning bowel movements?
A month ago, governmental violations of bodily autonomy were ignored, or grumbled about at most. If you want me to believe that this change is qualitatively different, you need to explain that, or else I'm going to put both violations in the same bucket.
> no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19
First, regardless of what they've actually tried to do, there has been a lot of talk about how they should. Such talk comes pretty much exclusively from the same group of people who think that overturning Roe is an apocalypse.
Second, they most certainly have tried to force vaccination as much as they could get away with. That wasn't by a law saying "get vaccinated or go to jail". That was a backdoor coercive thing where the gov't tried to say "if you want to do business with the gov't then all your employees must be vaccinated (leading to employees getting fired)", in conjunction with the fact that the government is already so damned big that they can be the 800lb gorilla in purchasing as a backdoor alternative to legislation. And while this was going on, people who I'm very sure support Roe were nodding their heads saying it's the right thing to do. Again, there may be a principled argument for treating this differently. But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
I'll take a stab at one potential explanation.
Pregnancy isn't infectious; you will not get pregnant by sitting next to a pregnant woman on the bus. Rights become more complicated when they impact others.
When it comes to marijuana, it can be more difficult to get past Wickard and Heart of Atlanta Motel when it relates to things like commodities sold on near international markets. Abortion services are often way more local of a law, far more difficult to argue interstate commerce.
I think you're making it sound more black-and-white than it really was. It's true that they weren't talking about coming into your house and holding you down. But they did try to make it as close to "you can't get a job to earn money to buy food" as they could. Pres Biden did issue an EO saying that anybody doing business with the federal government, and anybody in their supply chain, must ensure that their employees are vaccinated. Given the enormous size of the federal government, this covers a huge proportion of the country. (the courts did throw this out, but not before they'd coerced a lot of people to go against their own conscience)
Further, that's as far as the politicians and regulators were able to go. I seem to recall talk in some locales (NYC?) talking about wanting to implement vaccine passports, with which local businesses would deny entry to unvaccinated people, so you can't even go to the grocery store to buy food.
And, of course, my main point was about what the masses were arguing for. I don't think you could seriously deny that a sizable faction of people were arguing that the government SHOULD do all of the above. And that's exactly what I'm saying: people are claiming to back the idea of "bodily autonomy", but for a whole lot of them, their actions demonstrate that this is much less a fundamental inalienable right than they're willing to admit today.
A pregnant woman the next desk over to you doesn't have any effect on your body. A person infected with covid the next desk over does. You do understand how pregnancy works, right?
I imagine most would agree I have bodily autonomy to move my arms. I can't then swing my arms and beat someone to death, right? Your right to swing your arms ends just where the other man's nose begins.
You have all the right you want to not get vaccinated so long as your action doesn't impact everyone else around you. Feel free to go live in the woods with everyone else who doesn't interact with the rest of society. Nobody is going to come by and say you need to get vaccinated, just that there are a lot of benefits to being a member of society if you choose to do so.
To argue, "oh whoops you didn't _do the work_ to obtain your RIGHTS" is also simply a distraction. The US is founded on the concept of unenumerated rights. Do not be fooled. We had those rights and now we don't thanks to this new court.
Further, I don't buy that you truly believed the argument behind Roe anyway. I don't know you personally, but it's a good bet that you don't support the philosophy that it described. What Roe said[1] was that a person can make whatever[2] treatment they individual decide (in consultation with their doctor) is most appropriate for their circumstances.
But I'm betting that you don't actually agree with this, as evidenced that you likely haven't pursued other violations of it with such vehemence. So I ask you:
1. Have you taken to the streets protesting when people, after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the argument behind Roe is false.
[1] Believe it or not, I actually support the philosophy of bodily autonomy. But that doesn't change the fact that the actual argument behind Roe was a notably lousy one. This is precisely the point I was trying to make in my original comment: one's opinions about the goodness of something are independent of their judgment about the legality of legislation under the Constitution.
[2] Actually, Roe's text limits itself to just abortions, but it seems clear that such a principle ought to apply to all medical treatments in principle - that's why many of today's protests are framed more broadly as "bodily autonomy".
The justices lied to congress and were always going to overturn Roe. There's no higher judicial ground here.
My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
It may have started with a certain role, but it is now a political entity. I treat it as such.
People also need to try and understand that not every issue is a federal issue. There are also 50 state governments.
It has implications for other things too. For example, the post office. How about 50 individual post offices instead of a national post office since now logically the price of a stamp cannot be adjusted unless Congress votes on it, etc.
Does this mean that while they cannot stop new high emissions plants from being built, once a plant actually starts producing they could regulate it?
That might actually work out better, because building a plant and then having it come under regulation would probably be more costly to the plant owners than if they had went for a cleaner plant from the beginning.
> By hurting the country, who is benefiting?
"Chief Justice Roberts’s predecessors recognized their own limitations. In the 1984 ruling that formalized the court’s policy of regulatory deference, Justice John Paul Stevens wrote that “judges are not experts in the field and are not part of either political branch of the government.” Both points are important. The court lacks technical expertise and an electoral mandate. Thursday’s decision asserting a more muscular role is thus a blow to both the public interest and democracy."
At this point, those repeating the Fox News 'this is a win for accountability by returning power to elected officials' line are just being lazy.
Those who believe carbon dioxide absolutely is contributing to climate change and harming our planet would likely classify carbon dioxide as an air pollutant and thus believe the EPA has the power to regulate it. Those that believe otherwise are not going to consider carbon dioxide an 'air pollutant' and thus not subject EPA regulation.
The court isn't bringing any of that up in this opinion. They are looking only at whether Congress specifically delegated EPA the power to regulate emissions by means of "generation shifting". The majority opinion was "no, they didn't."
If the US can't abide by the agreement how can we expect India or China to do so.
Which basically means that this court will reduce the Federal government to a non-entity very soon, making its functioning absolutely impossible.
That may even be "constitutionally" correct (although no court since the founding of the US has ever found that to be an issue...this is an entirely new creation by a few members of this court), but it makes the US completely incapable of operating in the modern world.
If you thought China taking over Africa because the US govt was distracted by the Middle East (and isolationism) was bad, it's gonna get way worse when US federal agencies will constantly need to check back to see if they even have the power to do anything because the current SC has decided to curtail Federal powers in a way that every court before had absolutely no problem with.
The Constitution was designed to be amended to adapt to a changing world. Let's amend it! However, it is the role of the Supreme Court to apply what the Constitution DOES say, not decide what it SHOULD say.
EDIT: downvoting me isn’t going to save administrative courts and rule making.
I'm not sure confusing those two things is helpful though.
Lol good luck with that. Zero chance 3/4 of the states agree on literally anything. The culture wars are in full swing, owning the other side is more important than being effective.
The topic is about controlling proportions of different molecules in the environment to maintain a preferable quality of life for citizens of the world.
https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_th...
> Lol good luck with that. Zero chance 3/4 of the states agree on literally anything. The culture wars are in full swing, owning the other side is more important than being effective.
The problem is that a lot of people want to use amendments to force non-consensus policy preferences on the whole country. For many decades, it seems like Supreme Court decisions have frequently been serving as the constitutional amendments those people want in all but name.
Sadly, it seems near impossible to get consensus to change it now.
It's both normal and necessary for judges to consider the complexities and competing interests in cases to determine how the law should be applied. The constitution does not need to enumerate every single right for the court. See the 9th amendment, it specifically says that.
It's best to think of the constitution as a framework for how to think of our rights.
Courts have historically always considered the intent of law (constitution) in addition to the word of law (constitution). Why isn't this one?
It feels like this SC intends to use pedantry to hobble the federal government. But... why? Because they can?
If you limit an entity to only ever operate by the word and not the intent of law, then it's trivial for malicious (more accurately greedy) actors to skirt regulation, because the government will never be able to keep up with the exploitation of loopholes.
Kind of like how the IRS can tax bitcoins, despite cryptocurrencies not being explicitly written into the constitution or tax laws.
Nope. The IRS could always tax assets. And bitcoin is another form of asset.
> EPA argued that under the major questions of doctrine, a clear statement was necessary to conclude that Congress intended to delegate authority "of this breadth to regulate a fundamental sector of the economy." It found none. "Indeed," it concluded, given the text and structure of the statute, "Congress has directly spoken to this precise question and precluded" the use of measures such as generation shifting.
The problem here is that what most people here wish Congress intended to do isn't what Congress actually intended to do, because they couldn't build the political will to do it. I'm sympathetic to that view, but it's not the Supreme Court's job to fix Congress's deadlock.
How does issuing preemptive and overly broad rulings against regulatory action that doesn't exist align with SCOTUS "just doing their job" as many people are asserting?
Congress is no more respecting the will of the people than the executive branch, nor the Supreme Court.
They're all respecting their own opinions, followed only by the will of the lobbyists.
They do write opinions, but they might as well not since they answer to no one. No one can hold them accountable for blatantly contradicting themselves.
They can very theoretically be impeached, but that's a 100% political process - it's equally (im)possible whether they're "fulfilling their role" or not.
It's not a very smart system. I'm hoping Americans start questioning some of those patriotic pieties they're taught in their civics classes as a result of the mask-dropping that's happened lately.
The democratically elected Congress can pass new laws to overrule most SCOTUS decisions. A few decisions on constitutionality would require an amendment, but those are the exception.
Sort of seems like it. It was only in the early 19th century that the Supreme Court gave itself a) the power of legislative review, and b) declared itself the supreme interpreter of the constitution.
Since we've been busy upending precedent, why not upend these two precedents as well?
> They can very theoretically be impeached
In the past, one SC justice resigned under the threat of impeachment over his financial conflict of interest. At least one of our justices has been in violation of ethics rules around financial (and political) conflicts of interest. Several other have lied under oath at their confirmation hearings. I'd at least like to see Congress open some investigations as the first step towards impeachment.
But you're right, it is a political process, and I think the democrats are more than happy to simply fundraise off of this rather than exercising any check at all.
Were the country so inclined.
A subsidiary of the "just world" hypothesis is what they call in Russia the "just tsar" theory. The theory that the final legal authority, the tsar, is reasonable. He just doesn't know what all his bloodsucking boyars and rampaging Cossacks are doing.
The two main cases that framed how much (or little) _deference_ the courts should lend in matters of dispute broadly derive from Chevron v NRDC[1] and Auer v Robbins[2]
[1] - https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
A less pessimistic outcome is that it forces the US to operate more like the EU, which seems more than capable of operating in the modern world.
Whether that actually happens remains to be seen.
This is an absurd take. All Congress needs to do is clarify that they’d like the EPA to regulate carbon emissions. That’s it. The laws regarding pollution control, many of which date back to the 1950s and 1960s, we’re not written with global warming in mind. So the court is saying the EPA needs to get permission from elected officials to regulate carbon.
And therein lies the problem. We know Congress is too deadlocked to be effective. Does the Court pushing back on them have a shot at getting the legislative branch to do their jobs?
The Court could choose to act with the knowledge that Legislative won't do things, and so behave as the last bastion of relative non-partisanship across the Federal government by allowing the overall public opinion to influence what cases they choose to hear & their eventual outcomes. That would conflict with the letter description of their job, but arguably be in support of the spirit of the system as a whole.
They're not going to go that route, though, it appears.
If Trump ran the executive branch, would you want him pushing through via administrative fiat things that Congress doesn’t want? I certainly don’t want the EPA making policy — I want them doing what Congress explicitly tasks then to do. Same for other agencies. It’s the Major Questions doctrine.
Congress exists for a reason. The executive branch executes the will of the states and people as indicated by Congress. That’s the entire point of Congress.
The deadlock may be intentional, but it cannot be said that this is a desirable mode of operation when comparing to other countries that have much more effective governance and healthier societies.
The US is the world’s oldest democracy in no small part because of that document.
> And I hear Americans saying this nowadays, and there's a lot of it going around. They talk about a "dysfunctional government" because there's disagreement. And the Framers would have said, "Yes, that's exactly the way we set it up. We wanted this to be power contradicting power -- because the main ill that beset us" -- as Hamilton said in The Federalist when he talked about a separate Senate -- He said, "Yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won't be so bad." This is 1787 -- he didn't know what an excess of legislation was.
> So, unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock, which the Framers believed would be the main protection of minorities -- the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system.
> So, Americans should appreciate that and they should learn to love the gridlock. It's there for a reason -- so that the legislation that gets out will be good legislation.
https://www.americanrhetoric.com/speeches/antoninscaliaameri...
Pollution may make sense to regular here, but the states / federation needs to have a large majority agree (>60%). You can't have an unelected group of bureaucrats from the EPA dictating that a large number of states can't make money, for instance.
I live in a deeply conservative state, but I spend most of my online time on HN. This puts me in the middle of two vastly different cultures with vastly different sets of values. I have listened to both sides explain their sincerely held views. I have listened to both sides talk about the other side.
Each group will tell me "but those other guys are evil and only want to ____!" Each group then explains their own views, and you know what? Each group's views are rational. Each group's views are compassionate. Both groups really believe that they want what's best for the world, and neither group has thought through their ideas better than the other. Both have severe flaws in their reasoning, but both also really care.
In a word: both groups are human.
I think it would do us all good to assume that most people are acting out of sincerely held beliefs, and that most people really do want to do good. I know there are exceptions, but the world would be a better place if we didn't treat those exceptions as though they were the rule.
I'm attributing the worst to these people, because we know who they are. They want the government to have no ability to at all to put any restrictions on capital at all costs. They're simply doing it now because they have the raw power to do so.
Here, I'll just observe that you're doing it again: you're projecting the worst possible motive on someone else's decision without giving due consideration to why else they might believe differently than you.
The EPA was largely create to regulate pollutants based on laws written in the 1950s and 60s. It's not at all clear that the original lawmakers would consider carbon a pollutant -- it's something you and I are exhaling right at this moment.
So saying that the EPA needs authorization to regulate emissions that can cause climate change seems reasonable to me.
In areas where there's no consensus, sure. Congress is very effective when the parties align. This is government working as intended.
Not being able to bulldoze opposition is very different from existential destruction, or "becoming a non-entity" as was written above.
The government only taking actions supported by a mandate from the people is an ideal result.
This just isn't true. Congress continues to pass thousands of laws a year, in line with their historical trends.
https://www.govtrack.us/congress/bills/statistics
Congress is only too deadlocked to be effective on issues that the American people are divided on. And that's basically the point of democracy.
I'm sorry to say that if you want a different set of laws, then you'll need to do the hard work of talking to other voters and convincing them you're right.
> This is an absurd take.
Indeed, OP overstated the reality. If the SC rules all day every day to reduce federal power, it would never be able to keep up with Federal power expansion.
That is one interpretation. The dissenting opinion of Kagan argues that carbon emissions are covered due to Section 111(d), as this covers all pollutants.
I encourage all the tech people around here to "read the code": https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
Wait I thought people (especially the left) morally condemned the rush for Africa as well as modern day "neo colonialism."
EDIT: Alright, so I'm getting downvoted. What am I missing?
The USA is the most "at will employment" country in the world until it comes to the most critical functions of a government. It's absolutely crazy to me.
Don't mistake politicians' unwillingness to do something for an inability to do it.
The path forward is clear for every single political ideology working within the legal Constitutional framework of the United States: get popular support, build a political coalition and then pass laws. Anything that tries to take shortcuts around that process deserves the axe.
This is the entire purpose of SCOTUS. They are not supposed to wade into politics. It is the same beef I have with Powell and his giving in to political demands. There is a reason you have the power and independence you do. It is not to please everyone.
I get that people will disagree, but ends do not justify the means.
What does China and Africa have to do with this? The federal government is explicitly given powers of national security & defense & diplomacy. States don’t get to have embassies or choose foreign policy.
This Supreme Court is going out of its way to be destructive and cause harm.
The Supreme Court has been overreaching for some time now, maybe it's time to limit its powers? Term limits or rotating seats might also be options.
I don’t understand the logic behind the Supreme Court. How can such a tiny group of people, until the day they die, that weren’t appointed by the people, make decisions that affect all of human society?
Seems so anti-democratic to me.
What a surprise. How many Republicans are on the Supreme Court again?
> ... agreeing that Congress had not "intended to delegate... decision[s] of such economic and political significance".
Apparently the Supreme Court does not believe that the Environmental Protection Agency was intended to be given agency to protect the environment. It's like a The Onion parody.
> Attorney General Eric Schmitt for Missouri - one of the 19 states - called it a "big victory... that pushes back on the Biden EPA's job-killing regulations".
There the Republicans are again, beating the jobs drum in a period of historic lows of unemployment. Small government to them means big government where they want and small elsewhere, e.g., Congress and the Supreme Court acting as protector for corporations.
"EPA regulations were inconsequential in GHG emission reductions in the US during the last 20 years"
"This decision could doom humanity"
"An excess of environmental regulations is accelerating climate change, scientists find"
"Experts say the private sector will continue to seek emissions efficiencies on its own, regardless of environmental regulations"
"ESG investing norms could be 10x better for the environment than EPA regulations, climate scientists say"
Etc.
I already heard the excuse about a probationary period but I’ve been stuck in this state for awhile now and it’s not OK
We just happen to have people who have a very... different... idea about what the law means than their predecessors.
The legal trappings of the conservative positions have been explicitly merely legal trappings.
namely, that generation shifting cannot be a “system of emission re- duction” under Section 111. 985 F. 3d 914, 995.
However, given that you evidently prefer a single (technocratic?) world government I suppose you might welcome the further erosion of the US republic? In that case damn-the-consequences-do-what-I-want is an understandable position to take, even if it’s inimical to the long term health of the republic.
Now you may think this is a crazy example but there's an Alcoa facility in Texas that originally burned lignite but long since ran out of the good stuff and has just been burning dirt for decades. It is one of the largest point sources of air pollution in the world, and what the court is saying here is the EPA has not been empowered by Congress to stop that. If Alcoa wants to burn dirt, then fine.
TL:DR; the EPA has never 'protected people from emissions' well. This article seems to ignore all that history and focuses on the hot take of ruling reactions.
I am afraid we will see an immense amount of instability, increased poverty, mass migrations and authoritarian regimes rising up due to the fact that we couldn't manage to convince people that those parties do not care about them.
In a previous post I wrote that conservatives everywhere use moral issues to make people enraged in order to get vote, and in exchange to that they use their power to help the rich get richer. This is exactly what I was talking about. Those Conservative judges were appointed by a President elected by people that rallied behind him hoping to see Roe overturned, and in exchange for that they also gave them a free pass to alter the US political system in a way that is favourable to the Republican party, i.e. the party of big industry and capital.
This is also another small hint that "countries" are a stupid concept - we must stop to pretend that a single country is an island, everything has consequences that irradiate and reflect on the rest of the world, and it's stupid to think everyone can be a ruler of its own tiny spot of our planet.
Countries are like homes, but they aren't cottages in the middle of nowhere, they are flats - if you set your own house on fire, everyone will suffer, everyone will lose something, if not everything.
"$countryname first!" and Nationalism in all its forms is basically just a more general form of Fascism.
Constitution, Article 3
> The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
And, I mean, Trump literally said that he could guarantee he was going to appoint justices that would overturn Roe, and then they did, as he guaranteed. That's an outcome, right?
You want effective standards, do the work and pass a law.
The scotus is still operating in this environment. I don’t see how “fuck it throwing you to the wolves” has any immediate or future benefits?
Have some faith in people. Inventing rights and privileges autocratically is definitely problematic in a democracy. It's better to do the work of persuasion. We all have to live together. Note as well, the number of countries who have arrived at gay marriage through legislation rather than judicial fiat. It's a more respectful way to go.
Or is it just because it doesn't inconvenience you? Like these are all things that are very fresh in the memory of anyone gay that's lived in southern or red states. It's not a democracy if you have a bunch of people you treat as second class citizens.
This is obviously in conflict with minority rights.
If you care more about minority rights than democracy, fine. Lots of governments have limits on majority rule. The USA constitution is a famous example.
But those limits are limits on democracy. Which make them anti-democratic.
The more strictly you protect minority rights the less democratic your society is.
> It's not a democracy if you have a bunch of people you treat as second class citizens.
That's the purest democracy there is. A direct democracy that let people vote on absolutely anything would always produce that result.
In that case, is democracy good?
I know what you are trying to say, but it is too narrow.
If you think broader, the above is a laughable claim. Overturning the current understanding of laws is jarring to democracy. (Sure, there are times when it is morally necessary.) Why? Previous legislatures operated under the assumption that the Clean Air Act worked in a certain manner.
The Supreme Court has effectively overturned previous democratic work knowing full well the practical implications.
Oh and they've also convinced their party that cooperation is weakness because they are literally fighting the devil.
As such, I will decline to offer anything beyond what I've already said.
If you want policy changes to handle whatever real or imaginary threats you believe you face, then the correct way to deal with that is through the elected branches. They are the ones meant to make policy.
This supreme court has been stomping the other branches of government.
Congress created the EPA. If they don't like what they created, it's on them to fix it.
...yeah no, obviously not. The law has meaning and that meaning is stable. Words mean things. If you are stuck in "Anyone can interpret anything as anything else" land you have fallen prey to being too clever.
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
Congress delegating it’s power is suspect at best, and likely unconstitutional entirely (something something, War Powers Act). Congress created the EPA through the power of the purse, but it’s operated by the Executive, and therefore is not and should not be empowered to unilaterally create regulations with the force of law. Making law is Congress’ job.
Unless that was a typo and you mean to write "after the modern era"
Once more unto the breach, dear friends, once more, Or close the wall up with our English dead. Cry 'God for Harry, England, and Saint George! '
Res ipsa loquitor...
IANAL but how does codifying Roe v Wade change this?
There is a long history and philosophy around the proper roles and relationships of a legislature and court such as SCOTUS. The current Court could claim to make decisions upon a strict originalist philosophy of jurisprudence. Maybe they think they do, and maybe they really do. But...
Take an open-eyed look at history. Look at the process by which the justices are selected. This shows a different ultimate motivator: conservatives have been working for decades to pick justices whose claimed philosophies align with the conservative agenda.
I don't care the motivation. The SC shouldn't be doing congress' job. Congress got burned because they've been complacent.
RvW has always stood on tenuous footing. We've known this. Congress has literally had decades to do something and they chose instead to keep the status quo. Why? Because the republican threat helps democrat voter turnout. Same reason nothing is being done about the failed drug war.
This is a bizarre metaphor to use. This isn't a zero sum game. It is a three branch government.
In general, I push back against language and metaphors that don't have much value. We get to choose what metaphors we use. So we should choose good ones. Fixating on, i.e. "A versus B" is a competitive metaphor. But the branches of government are not competing against each other. They are working as part of system to (hopefully) maintain some semblance of a functioning representative democracy.
When one branch exercises a check against another branch, I don't think it is useful or interesting to say that it "won". I don't want us to start treating any of the branches as competitors in some kind of game or sport. I don't have much joy when, e.g. the House votes to impeach a President. It might be wise and justified (or not), but it is hardly a cause for celebration. But at times, it is necessary duty.
More specifically... No, Congress didn't "get burned". First of all, the composition of Congress has changed significantly over the last decades. Second, to my knowledge, the Dobbs ruling was not directed in any way at Congress or its legislation.
That's unfortunate. The Supreme Court can only function well if the justices are predominantly motivated by judicial, not political, principles.
If the court plays lip service to judicial principles while ultimately being driven by politics, it is a puppet and cannot serve as a proper check and balance.
Yawn. This is a cliche and talking point you know, to use your own language.
This statement does not address the issues head on. If you have a theory of jurisprudence, say it. You don't need to water it down with over-generalizations.
If by 'tenuous footing', you mean that there is not legislation protecting it, I understand what you are saying. However, per stare decisis (respecting judicial precedent), the general idea of Rowe has been settled and stable for a long time. Public opinion has been relatively stable too.
You said "Congress has literally had decades to do something and they chose instead to keep the status quo.". Congress is a body, yes, but it is also comprised of parties and coalitions that disagree. Saying a "split-brain" body "chose" to keep the status quo isn't a very useful way of thinking about it. A better explanation (one that conveys more information about what is happening) is that the parties strongly disagree, and the party lines have gotten firmer over time.
In February (this year, 2022), the House passed a law codifying abortion with Democratic support. It failed the Senate 46-48 due to Republican opposition.
Stop putting them in the same category. This is useless and nondescriptive. Here's what I mean by that : if you were to build a machine learning classifier with a decision tree algorithm, what do you think some of the most important differentiators would be?
Tell me which party tends to acknowledge scientific evidence more often.
A fool sets impossible standards and moans that everyone falls short.
Accept reality. Choose from the better options. There is no perfect except in mathematics (and maybe some physics we don't know yet)
I am afraid we will see an immense amount of instability, increased poverty, mass migrations and authoritarian regimes rising up due to the fact that we couldn't manage to convince people that those parties do not care about them.
In a previous post I wrote that conservatives everywhere use moral issues to make people enraged in order to get vote, and in exchange to that they use their power to help the rich get richer. This is exactly what I was talking about. Those Conservative judges were appointed by a President elected by people that rallied behind him hoping to see Roe overturned, and in exchange for that they also gave them a free pass to alter the US political system in a way that is favourable to the Republican party, i.e. the party of big industry and capital.
This is also another small hint that "countries" are a stupid concept - we must stop to pretend that a single country is an island, everything has consequences that irradiate and reflect on the rest of the world, and it's stupid to think everyone can be a ruler of its own tiny spot of our planet.
Countries are like homes, but they aren't cottages in the middle of nowhere, they are flats - if you set your own house on fire, everyone will suffer, everyone will lose something, if not everything.
"$countryname first!" and Nationalism in all its forms is basically just a more general form of Fascism.
This has already been happening for a decade now. But it has been limited to poorer regions, such as north Africa, south-central Americas, and war-torn regions of the Middle East.
Most of this instability was precipitated by food prices, which wealthier nations found themselves immune to. But they are no longer immune, food prices are spiking by double digit annual percentages all over the world. Fuel prices too. The G7 are already in talks about how acquiesce to Russia for their natural gas.
I was already planning to expat soon, but this all makes me want to try to hurry that timeline. Sorry to those of you that are stuck in this hellscape.
So instead of being cynical and celebrating people who are abandoning ship, which I totally understand, we should instead spend time uniting people in opposition. Stay where you are and fight. It's your country. It's mind-blowing that people won't engage in trying to actually do something, even something as simple as helping a campaign, or donating money, but instead they're like "well I'm going to just give up and spend all this time and effort moving to some other country where I also won't uphold any civic responsibility". Madness.
But yeah, rough stuff
But narrowly, I'm talking about democracy itself, which is not doing well in the US.
This is also a popular trope in fiction. In the recent Handmaid's Tale series, there are several episodes devoted to life immediately before the fall, and what you see is a lot of evidence stuff is going to hit a crisis point, and a lot of people insisting that it hasn't quite yet.
Obviously the threshold to act has to be fairly high -- and I'm not saying America is Kabul or Kyiv or Gilead -- but I think there's nothing wrong with listening to the part of your brain that says "wow, it feels like the shit is imminently going to hit the fan". Because if you wait until it actually does, you'll have significantly less capacity to act.
There are also options beyond leaving the country. Some places are physically safer and physically more isolated from threat than others. For example, in the event that there is a rapid institutional collapse in the United States, it seems likely that Hawai'i would be among the places most likely to endure a little while extra or to most easily facilitate leaving the country. Areas near unguarded border crossings on the northern border also have an appeal in that regard. I think the right degree of seriousness with which to take something like this is not so much "I should move to Hawai'i tomorrow in case there's a civil war" and more "If I can work remotely in Hawai'i or if a job opens up, I might gain some degree of personal safety/sovereignty by moving there."
Personal context: I am a non-American. I spent most of the 2010s living in the U.S., and I emigrated to another country in early 2021. The pull factor to emigrate was a job opportunity abroad that was great and that my wife agreed would be a fun way to spend a few years, but the push factor to emigrate was significant uncertainty about the institutional stability of the U.S. We were setting up our paperwork just as the Capitol Insurrection happened.
Of course, things going badly in the US is going to have spillover effects everywhere else too, so that's something to keep in mind. I'm not sure how isolated various places would be.
Barring extreme circumstances‡, one should not moving from the country of one’s birth, but to the country of one’s choice. I emigrated from the U.S. two decades ago to Canada, because of the person who later became my wife—but I had to decide that I could live with Canada, too. Family aside, nothing in the U.S. either held me to America or was pushing me from America.
The process took almost two years, and it was almost five years before I got Canadian citizenship. As I understand it, it would take longer now.
My wife and I are considering moving to Europe or the U.K., but it would take time for this move to materialize, and we need to figure out what it is that we want (especially given our ages). Such a move is not likely to happen for two to five years at this point.
‡ There are exigent circumstances where it becomes safer to leave one country with little care for where one goes, as long as it isn’t worse. I fear with the extremists taking power legitimately and illegitimately and pushing toward their increasingly apartheid goals, there will be larger classes of people who could legitimately become refugees from America, especially if "liberal" states turn extremist—as they seem likely to do, since the divide here is (mostly old, mostly white) rural vs (mostly younger, mostly diverse) urban.
Sitting where I sit, I truly think that America is fucked, and am doing what little that I can to make sure that Canada does not follow in its footsteps, but we have our homegrown extremists whose crypto-christo-fascist messages are being treated with bemusement to respect, and even being promoted by fools like Poilievre.
It's better to gtfo.
Some people are deriving plasure from fighting the fights even at high personal cost. But most people don't.
Your top responsibility is to yourself, to make the best of the short time you have. Fighting loosing fights doesn't seem to be that for most people.
Ironically this is the mindset behind keeping the coal plants online.
Could you clarify who "they" is in:
> this is exactly what they want.
?
And are you being a little hyperbolic (nothing wrong with that, we all do it especially when impassioned) or do you really think the supreme court (or whoever "they" is) are trying to cause an exodus of people they disagree with?
I'm not challenging/disagreeing with you, just very interested in understanding your thinking.
I've actually always felt this way about immigration and refugees as well. I certainly understand taking people in (from wherever, to wherever), but the big problem with that is once all the good people leave an area you have nothing but the bad people. It's sort of fragile on a global scale. What's the end goal? All "good" people go to a select few countries and then the rest of the world is run by bad people?
> And are you being a little hyperbolic (nothing wrong with that, we all do it especially when impassioned) or do you really think the supreme court (or whoever "they" is) are trying to cause an exodus of people they disagree with?
I don't think there's an active campaign just yet, but I do think that state legislatures are happy when this filtering process happens because it solidifies power. So far they have not undertaken active, visible campaigns, but I believe that it's coming and will come more aggressively from Christian Communists that have taken power in state legislatures. It's not something that Democratic Party leaders will say out loud but of course they're happy when so-called Republicans leave their jurisdiction as well.
> I'm not challenging/disagreeing with you
Please do! We can't get better if we don't explore and have discussions.
That is definitely one approach, and one I'm hoping to see through. But simultaneously you have to acknowledge that there could come a point where it's time to jump ship. That point is going to be different for everyone. Recent events have pushed some past that point. That doesn't seem hard to grasp.
> It's mind-blowing that people won't engage in trying to actually do something, even something as simple as helping a campaign, or donating money...
Have you been paying attention? People in this country have been more engaged over the last few years than at any point in my lifetime, and at this point the ship is still sinking.
Every time there is a school shooting, there is outrage and no change. Proud boys terrorize another fucking library event, and there aren't even reports of a single arrest. Women's rights being slaughtered and we get to hear how we need to vote. Another hearing laying out the obvious coup attempt on Jan 6th, and no action taken but another news headline.
This is just a snippet of the last ~30 days. 1 short month. I don't argue that it's my country. My country just looks like a real shithole lately.
> but instead they're like "well I'm going to just give up and spend all this time and effort moving to some other country where I also won't uphold any civic responsibility".
This is such a weird take. Consider employment. You can join a startup, work your ass off, cross your fingers, and hope for that big payday. High risk, high reward. Alternatively, you can join a mature company, collect a comfortable paycheck and moderately help to steer the bigger ship.
Right now, the US is looking like that startup. You can work your ass off, and it may give you a great payoff in the form of opportunity. But it's looking increasingly like it's going to fail. Alternatively, you can move somewhere that has all the big stuff in order, and you get to work on the small stuff that still has effect while not worrying as much about whether you're one injury away from bankruptcy.
Who knows? Maybe if we vote harder it'll turn around. At this point, I'm inclined to believe it's cultural. We barely voted out an insurrectionist. 48% of the country voted to keep that in play. This country is full of people who are actively encouraging someone to overthrow our government. 48%.
We're only a few years away from the collapse. It is a smart move to escape while you can. If I need heart pills or insulin in the future and they can't be made safe, then it won't be safe if you have any medical issues. If the water won't be safe because we couldn't regulate new chemicals invented, then it won't be safe to live here. If it isn't safe to have a pregnancy, because they've decided to sentence to death those with an ectopic pregnancy, why should you stay?
1. Moving is hard. Even harder for people that have little means. Living in the state you're comfortable isn't going to work for a lot of people.
2. Currently, it doesn't feel like "the state you're comfortable in" will be that way for long in this country.
3. Moving to a country you're comfortable in is the same principle, so why not do that if you're already comfortable moving?
But to play this card,
Also, don't forget that a lot of blue states (if that's where someone wants to live) have been really bad at providing enough housing, so are pretty difficult for someone to move to if they don't have a lot of money.
That's a pipe dream. The division is urban-vs-rural, not state-vs-state. What is now a red state will inexorably become blue as people flock to it. Rinse and repeat.
America has been through divisive times in the past. We'll survive. I think what's notable now is that it's been so damn peaceful for most of our lives that this looks like unprecedented tribalism.
This seems well worth working hard for.
My personal approach is to be very hard on family members and friends who if democrats talk about republicans as evil incarnate and if they are republicans then talk about democrats as woke idiots who are ruining the country.
I try to point out how stupid both sides are and they are fighting the wrong battles against the wrong enemy.
Another reason to stay in the USA: currently the world is splitting into two economies led by:
1) BRICS countries (Brazil, Russia, India, China, and South Africa) - they will probably have about 60% of the world's population aligned with them.
2) USA/Europe/Canada/Australia/etc. - they will probably have about 40% of the world's population aligned with them.
Except for the USA and Russia who have the resources (food, energy, defensibility), I think that most all of the other countries can not exist without external trade. If the shit really hits the fan for the world, being in the USA might be a very good thing, even if we don't solve the political bigotry of democrats and republicans hating each other.
It looks much less so if you turn off the news. I have a good life here, and I'm unconvinced it would be a net improvement to move to Europe. I enjoy visiting there, but it's not like they don't have their own problems.
If Republicans want to abolish the EPA, all they have to do is pass a law. They could do it with a simple majority in each House if they abolish the filibuster (which itself requires only a simple majority).
There is no meaningful loss of democratic control here. Congress can do whatever it wants, with or without the EPA.
This is just the highest court in the land acting as toadies for the fossil fuel industry, legislating from the bench on a flimsy right wing legal theory.
This is a massive blow to the US being able to reach emissions targets. Every day we're one step closer to the 'business as usual' path that leaves the world 3-4c hotter. That's a catastrophic scenario.
I think this is the actual goal. I don't know if they are aware that it does not make a difference climate-wise what they believe (or not).
Whose targets though? 'Shouldn't we the people' have a say? i.e. shouldn't congress actually hold the hearings, digest the info and go on the record voting for or against important items?
We don't let the IRS set tax rates, we should not let unelected bureaucrats decide what the environmental goals are - elect people you think represent your priorities, have them go on the record supporting or opposing important decisions, and then pass a law the establishes frameworks to the agencies in charge under which they operate.
Of course, but this will never happen. So if the only positive outcome of an action is a long tail event, then maybe the action shouldn’t be taken. We have to look at the expected value of this, which is that people less versed than the experts suddenly making decisions they had previously relegated to the experts. Chaos.
Want 'We the People' to have a say in whether or not the EPA should regulate CO2? Put it to a national referendum. Congress has shown repeatedly that it's more than happy to watch the world burn if it means their superpacs are stuffed with lobbyist funds.
The effect of the Court’s order, followed by the Trump administration’s re- peal of the rule, was that the Clean Power Plan never went into effect. The ensuing years, though, proved the Plan’s moderation. Market forces alone caused the power industry to meet the Plan’s nationwide emissions target—through exactly the kinds of generation shifting the Plan contem- plated. See 84 Fed. Reg. 32561–32562 (2019); Brief for United States 47. So by the time yet another President took office, the Plan had become, as a practical matter, obsolete. For that reason, the Biden administration announced that, instead of putting the Plan into effect, it would commence a new rulemaking. Yet this Court determined to pronounce on the legality of the old rule anyway. The Court may be right that doing so does not violate Article III mootness rules (which are notoriously strict). See ante, at 14–16. But the Court’s docket is discretionary, and because no one is now subject to the Clean Power Plan’s terms, there was no reason to reach out to decide this case. The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. That new rule will be subject anyway to immediate, pre-enforcement judi- cial review. But this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to ad- dress climate change. The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote. The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shift- ing. Ante, at 31. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants. §7411(a)(1). The “best system” full stop—no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the “best system”—the most effective and efficient way to reduce power plants’ car- bon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute. The majority’s decision rests on one claim alone: that gen- eration shifting is just too new and too big a deal for Con- gress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad del- egations like Section 111 is so an agency can respond, ap- propriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.
tl;dr: the majority chose to rule on a plan that never went into effect and will never go into effect, in practice taking on an advisory role rather than waiting for an actual concrete plan to rule on. Beyond that, Congress intentionally chose the broad language of "best system of emissions reductions" but the majority asserts that congress should have instead referred to generation shifting by name despite the technology not existing at the time of drafting
The modern day supreme court is a joke, unable to be even remotely consistent in how it applies its rationale and its clear they're merely another puppet for conservative politics.
There is far too much obsessing over "their logic is consistent" and far too much intentional ignorance of the fact that they chose which logic to bring to bear on which issues, and that there are many other possible ways to apply consistent logic.
Their logic can be consistent and they can still be partisans, looking to implement a specific agenda.
I don't believe people on this site are too stupid to realize that, I believe they prefer not to, because they support the outcomes these rulings enact.
And given that, we are in a lot of trouble.
I claim they have never done this. That every ruling has had an eye towards the outcome, whether stated or unstated, and that when they claim to be acting as mechanistic evaluators they are attempting to hide their interest in the effect they're having.
Besides, its a terrible idea. The real effects of their rulings matter much more than the philosophy.
But if you dont try and figure it out, you can't understand the world.
If you don't think its true, why not?
If that's your view, then we should just abolish courts. What's the point of having unelected legislators?
This is actually a modern take that was essentially created by Justice Scalia. I like the take ("textualism") in many ways but, to be clear, the SCOTUS has no such mandate.
Also, outcomes matter. If before a ruling, a group of people had rights, and after a ruling those people have fewer rights, the cause of the loss of those rights is the ruling.
That's a farcical excuse to achieve the desired outcome. If the only "acceptable expert advice" is 200 years old, then they're just being obstinate.
The courts are needed because interpretation of law is NOT cut and dry. But if interpretation is involved, it's going to be partisan. If it weren't partisan, these rulings by 6-3 majorities, formed by judges appointed by Republicans, wouldn't be so in line with Republican priorities.
It's not an "overly simplistic view."
> The purpose of SCOTUS isn’t to rule based on what the desired outcome is, it’s to rule based on what the law explicitly does say and is permitted to say per the Constitution
You make this sound like an objective function, which it is not. Judges can interpret the constitution differently, they can interpret written laws differently, and how the two relate can be subject to subjectivity as well.
I also question the premise. All government is beholden to the people, so while congress is supposed to pass laws that represent the will of the people, SCOTUS is ultimately supposed to interpret laws in a way that represents the will of the people as well -- THAT is its purpose. Roe's overturning is an example of that utterly failing.
Furthermore, I think looking at the recent decisions to uphold gerrymandered maps in Alabama and Louisiana should without a shadow of a doubt prove how partisan the court is.
And they can't claim to be "literalist" or "originalist" when deciding that border patrols duties are more important than the 4th ammendment
So if the supreme court is doing it then they're partisan QED
Also, please, one side is doing much more voter suppression than the other
Your positivist legal philosophy is not shared by the Roberts Court.
> it’s not hard to see that the executive branch took action that the legislative branch never gave them
The dissenting opinion explicitly argues that Congress did explicitly grant the Executive to explicitly regulate GHG emissions, both the manner and the amount.
"The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote. The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shifting. Ante, at 31. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants. The “best system” full stop—no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the “best system” the most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute. The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases."
The “best system of emission reduction” from Sec. 7411 is in regards to “standards of practices for new stationary sources” - the definition for a “stationary source” is a few paragraphs down and the broadest it gets is “facility/installation”.
Even if you buy the argument that the regulatory authority expands to the entire grid because the concept of a multi-sourced power grid didn’t exist in the 1970s (which doesn’t pass the smell test tbh), the rest of Sec. 111 makes it absolutely clear that “best system” was intended to be in reference to technological advances/upgrades that would make individual plants/buildings less pollutant.
Forcing a power generation shift from a coal plant to a hydro plant 40 miles away is definitely out of scope for what’s spelled out in the Act and Congress needs to get off their asses if they want the EPA to have that sort of power. And maybe toss in some funding for nuclear while they’re addressing this whole “best system” thing.
For my part, I cannot fathom how or why any regulatory state would make a distinction between individual power generator and the overall grid. They're inseparable.
Further, under the (never implemented) plan, power shifting was incentivized, earning the generators more ROI. Basically a financial life line for utilities.
So why are they complaining?
The reason isn't financial or environmental. The ideological reason is the dismantling of the administrative state. By inserting itself into the policy review process, the Roberts Court introduces confusion and delay, ultimately yielding inaction.
That's a very biased take.
I think someone else said it better: what both the "progressive" and the "neocons" want is "a CCP-style political system as long as they're the ones in control" where "concepts like separation of powers and rule of law are merely obstacles to smash through on their road to utopia"
It's very rare than unconstitutional power grants are clawed back, so personally I see what's happening right now as a good precedent: it says the executive and the administration can't just wish into existence new laws or power grants: they have to operate within their existing bounds.
Deductive logic is totally applicable here. Otherwise, it gives you a situation where a president believes he can legally become judge, jury and executioner through executive order (pun intended) and order the army to execute US citizens by birthright through drone strikes.
Just because they are enemy combatants or some other convenient legal fiction doesn't make it a-ok.
I mean, HN is kinda a go to place for pendantry, it's not terribly surprising. People started a huge fight over whether the word "they" can refer to a single individual the other week.
Not every topic evokes pedantry. HN has specific interests, and brings out nitpicking to advance specific causes.
Link please?
It honestly makes me ashamed to be a programmer associating with this type of person whos completely incapable of understanding even the simplest social issue
Each state has the same weight in the senate because they are all equal players in that space.
The house has the bias towards population.
Most regulation is supposed to take place at the state level.
Except they represent wildly different populations and all have equal say in the senate.
> The house has the bias towards population.
One that has been capped by the DC Admission Act and perverted by gerrymandering.
> Most regulation is supposed to take place at the state level.
Says who? How in the world does that work for things like pollution (which isn't stopped at state lines) or basic rights such as the right to love who you love and/or get married?
Says the Constitution... 10th Ammendment: any power not explicitly enumerated to congress is left to the states.
Article 1 Section 8 enumerates the powers that the federal government has, along with some granted through ammendments.
How is a state supposed to, on it's own, handle regulation against pollution from it's neighbors? How do they stop the state upstream? How do they they stop the state next door?
You honestly think it's a good system to have congress be the ones legislating on every new way companies come up with to pollute?
> let it run wild.
We have very different definitions of "running wild".
All of this assume a functional congress which we absolutely don't have. I'm working with the cards dealt, you want to imagine some pie-in-the-sky idea of how congress should function. I agree it should function better but I don't see how letting companies pollute more is somehow a "win" and it certainly won't motivate the people in congress who don't even believe in climate change. All of this thinking seems to completely ignore that we need 60 senators to pass any legislation (due to the filibuster), a chamber of congress that is in no way representative of the people.
Absolutely not, and nobody (including SCOTUS in their ruling) says that they have to. Congress can still delegate authority to agencies, but at a certain point the agencies are limited in what they can do unilaterally without specific legislation.
> All of this assume a functional congress which we absolutely don't have. I'm working with the cards dealt, you want to imagine some pie-in-the-sky idea of how congress should function.
I agree that Congress is entirely dysfunctional. But I think that this sort of unconstitutional power that they've been so happy to delegate to the Executive has absolutely played a role in getting us the dysfunctional Congress we have today.
You can call it "pie-in-the-sky" but letting Congress continue to skate by without doing their jobs and letting Executive branch agencies unconstitutionally usurp the authorities of the other two branches is something I'm glad to see put to an end.
We can hold Congress accountable. I can't say the same for nameless, faceless bureaucrats.
A lot of the "it's the right interpretation" crowd seems to be completely uninterested in who gets hurt in the meantime and seem to look at it as if it's just cold logic executed in a vacuum. These ruling have real consequences and no amount of "congress should act" or "this was their job"-thinking will fix that. It also doesn't address the outsized power that some states/parties have, I grow less and less sure we are actually able to hold congress accountable.
Though I will say I hope for the future you foresee, I just can't see it becoming reality.
I do not agree that impacts states equally nor do I buy into the premise that states should have an equal say. We aren't seeing the tyranny of the majority, we are seeing the tyranny of the minority between the filibuster and the senate not being representative of the people.
As for the house I find it representative of the people in name only. By capping the total members we have done a gross injustice to people by letting the ratio of rep->constituant grow to an unreasonable number. Along with our two party system I certainly don't feel as if I'm represented by my senators or my rep.
Again, I understand how things currently "work", I'm just saying it's a shit status quo. I also understand this is just the opinion of a random person online and I'm not asking you to argue against it (though you're welcome to disagree).
If democracy died every time somebody got mad at the outcomes and made claims like that, it would have been dead before it even started, and subsequently re-died every year since. What exactly was so democractic about SCOTUS permitting the executive branch to write their own laws anyway? Writing laws is meant to be the job of Congress. You can claim Congress is insufficiently democratic due to gerrymandering, but less democratic than the judicial and executive branches? Give me a break. Congress remains the most democratic of the three, and this SCOTUS decision gives power back to Congress.
> the US is far more polarized and contentious than it ever was before.
This is completely divorced from reality. Everything that has happened in the past 10 years is a mere candle to the bonfire that was the Civil War. You must be discounting datapoints you didn't live through if you really believe what you've said here. Shit man, the present state of affairs is tame even compared to the 60s and 70s.
The decision to even hear the case is radical and affirming would represent a massive shift away from democracy in the US as we know it.
>Issue: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
[1] https://www.scotusblog.com/case-files/cases/moore-v-harper-2...
Features like the Electoral College can lead to different incentives in close elections, but even that does not systematically favor Republicans. As recently as 2012, the Electoral College favored Democrats. Obama would have won in 2012 even if he had lost the popular vote: https://fivethirtyeight.com/features/did-democrats-get-lucky... ("President Obama won the Electoral College fairly decisively last year despite a margin of just 3.8 percentage points in the national popular vote. In fact, Mr. Obama would probably have won the Electoral College even if the popular vote had slightly favored Mitt Romney.")
You seem to try to imply that they are not important to legislation, which is just silly.
Yeah, but conditions have changed somewhat since 1787 — not least, what genteel white Southern ladies used to sometimes refer to as The Late Unpleasantness (1861-65).
> As recently as 2012, the Electoral College favored Democrats. Obama would have won in 2012 even if he had lost the popular vote
Except he didn't lose the popular vote. That "honor" is reserved for the last 2 republican presidents (2000 & 2016)
Because it clearly shows the president is not picked by the people but through an abstraction that steals voting power from some and gives it to others.
> The popular vote was never intended to decide presidential elections.
And black people counted as 3/5th, women couldn’t vote, black people couldn’t vote, the entire bill of rights, and more were “never intended”. That’s such a silly argument.
That "abstraction" is known as "degressive proportionality" [https://en.wikipedia.org/wiki/Degressive_proportionality], which is also used by the EU to apportion seats in the European Parliament. The US's system aims to make sure that the President is elected by a broad base of voters across disparate states, the same way the EU elects its Chief Executive (today that's Ursula von der Leyen) in a manner that dilutes the power of highly populated Member States. You generally use counter-majoritarian institutions like equal representation and/or degressive proportionality if what you're trying to build is a Federal union, and not a unitary state. The United States is not and has never been a unitary state. The individual States are unitary in nature; it's impossible to elect the Governor of a State without winning the popular vote, in that State.
> And black people counted as 3/5th, women couldn’t vote, black people couldn’t vote, the entire bill of rights, and more were “never intended”. That’s such a silly argument.
This is a non-sequitur. The counter-majoritarian institutions of the Federal government aren't unique to the US (see: Australia's Senate, Switzerland's Council of States, Argentina's Senate, Mexico's Senate, the EU), and is certainly unrelated to the very real evils of slavery or disenfranchisement of Black people. It's just a way to organize large heterogeneous polities. The same way that it doesn't make sense to invalidate the Constitution's right to a free/fair trial just because it also happened to include some unrelated bad things, so too is slavery entirely irrelevant to the question of whether the US ought to be a Federal union. The core question at hand is: should the US be a unitary country or should it be a Federal country. As long as it's a Federal country (i.e. the status quo), you will have counter-majoritarian institutions at the Federal level.
Even in Canada, the Prime Minister's party won fewer votes than the rival party, but still won more seats in Parliament. In 2019(https://en.wikipedia.org/wiki/2019_Canadian_federal_election) the Liberal party won ~6M votes and won 157 seats in Parliament, while the Conservative Party won ~6.2M votes but only won 121 seats. The same thing happened in 2021 (https://en.wikipedia.org/wiki/2021_Canadian_federal_election... ~5.5M votes to 160 seats vs ~5.7M votes to 119 seats. This means that the plurality vote getter did not win the plurality of seats, and thereby did not enjoy the possibility to drive the formation of a majority coalition. The reason for this is that many of the Conservative Party's votes were clustered in specific parts of Canada, and there were diminishing returns to driving up large majorities in those clusters; you have to appeal to multiple disparate clusters. This is a feature and not a bug of Canada's Federal system, because the goal is to optimize for the breadth of voters, not just the depth of voters, especially at the Federal level where policy impacts everybody, and not just a single state/province.
If people want to talk in an echo chamber (or to themselves) , than by all means, they should make every assumption they want.
If you want to talk about the issue, then address the root: Should states have power beyond their proportional population in congress and presidential elections?
This is a much more interesting discussion.
For congress I say no, but I would support states allocating their electoral college to match how their state votes, like Maine or Nebraska, opposed to winner take all.
[0] https://en.wikipedia.org/wiki/North_Carolina%27s_12th_congre...
[1] https://en.wikipedia.org/wiki/North_Carolina%27s_12th_congre...
[2] https://www.nccivitas.org/2016/a-look-back-sheds-light-on-re...
And Republicans in California and New York feel like their vote doesn’t matter when it comes to the Presidential popular vote. So why do you act like that matters?
> Except he didn't lose the popular vote.
The point is that you can’t complain that the Electoral College is systematically stacked against Democrats.
Cherry-picked stats are banal.
Democrats won almost 5 million more votes in the CURRENT election, which is more than the entire population of Mississippi and West Virginia combined. That's why it's not unfair to claim a "minority rule" at play.
https://en.wikipedia.org/wiki/2020_United_States_House_of_Re...
https://simple.wikipedia.org/wiki/List_of_U.S._states_by_pop...
For Row. Court took power away from itself and gave it back to elected officials.
You can vote for those elected officials. This is democracy working as intended.
Not when elected officials can pick their voters and throw out the election results they don't like. Please join the rest of us in reality and not the la la land where our system is working or even healthy.
The elected officials never lost this power, if congress didn't want the EPA to do something they could draft and vote on a bill to that effect by Tuesday.
The united states has never been a democracy. The united states was designed with a state being a nation, each nation joined a federation (the united states). This is similar to the EU (they're following the same model).
Your local governments still have WAY more power over your life than the federal government. Think about your daily life, when you drive do you worry about speeding in town? If you do, that's because your local government. Local taxes, approvals for construction, education, health services, power, etc is all decided locally.
Local governments are decided within a community, they can ignore federal laws. Local officials are decided via a democratic way, direct votes. IMO that's actually becoming stronger, as the federal government weakens, it returns the power to where it belongs people and local government.
This was true a 100 years ago, i don't know if it's true anymore. My retirement, how much i pay in taxes, can I get healthcare, what does that healthcare look like, how much pollutants can the power plant produce, how safe is the car I drive, and many more questions are determined by the federal government.
There is nothing wrong with judges having an "agenda" as long as that agenda rests on legal doctrine and philosophy, and not "outcomes."
It’s a red herring in these discussions because it’s not the true reason people support it.
By the way, I think liberals also believe what they say. It’s just that they believe that judges should be cultured elites sitting on a throne telling the rabble how to structure their society.
While your logic is consistent, unbiased, agenda-free and non-partisan.
>because they support the outcomes these rulings enact.
While the fact that you do not support these outcomes has no bearing in your opinions on the matter.
So, yes, I support the outcomes of this ruling just as much as I support the reasoning. Congress needs to get its act together and legislate, not let the Executive branch make up rules to fill the void they've left.
Totally: https://www.theguardian.com/world/2014/jun/23/us-justificati...
"Lawyers for the Obama administration, arguing for their ability to kill an American citizen without trial in Yemen, contended that the protection of US citizenship was effectively removed by a key congressional act that blessed a global war against al-Qaida. Known as the Authorization to Use Military Force (AUMF), the broad and controversial 2001 law played a major role in the legal decision to kill Anwar al-Awlaki, the former al-Qaida propagandist and US citizen, in 2011, according to a redacted memorandum made public on Monday."
I don't want the executive or the administration to use creative interpretations to allow themselves to legally become judge, jury and executioner through executive order (pun intended) that may be very hard to claw back.
The constitution and the supreme court are here for a good reason: to prevent such abuses.
I cringe sometime when I think about the potential burden of evidence not being brought forth to make a case that someone is a terrorist, and then getting droned.
> I don't want the executive or the administration to use creative interpretations to allow themselves to legally become judge, jury and executioner through executive order (pun intended) that may be very hard to claw back. The constitution and the supreme court are here for a good reason: to prevent such abuses.
Well said.
One man's freedom fighter, or terrorist, could one day become, one's political adversary.
If congress, doesn't like the ruling, it can reverse it in legislation.
> The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ... --to controversies to which the United States shall be a party;
To use an engineering analogy, if the government were a software application, this is very much like a senior engineer going on a major refactor of a production system, causing huge breaking changes for the sake of "principles", without consulting product, CS or QA. For the sake of argument, lets grant that there's some force to those principles. Is that justification for suddenly breaking a system that was working and causing a massive amount of confusion for downstream users that were blindsided and now have to do massive updates of their own?
Okay, now lets suppose that the same senior engineer was secretly (or perhaps even openly) beating the drum for some feature changes behind the scenes, and nobody liked the features he was proposing. Now after the refactor, it turns out that for "technical reasons" the features now work the way HE wanted them to. When asked, he claims it wasn't a political decision, it was driven purely by engineering concerns, "cleaning up tech debt" and so forth, he claims. Might it seem to you that the refactor was just a smokescreen for just getting the feature changes he wanted into production?
If this engineer was at your company, would you keep them on, or fire them as soon as possible?
Now according to your argument, you view SCOTUS as the engineering team, and Congress as the product team. You're saying that ten years after you release a feature, the technical lead can say "Hey, you remember that spec for those features we released to production 10 years ago? I think we did it wrong, we need to refactor it so it works right. Also that was the old engineering lead, and I never liked them anyway. It'll be a major breaking change, but that shouldn't be an obstacle to doing it right this time. Should we ask Product or the Executive team first? Of course not, we know what we're doing."
If you want a political analogy, politically, there is no "right or wrong". SCOTUS is not motivated by adherence to precedent, they clearly have an ideological agenda.
They are not, for example, legalizing marijuana, on the grounds that the FDA should not have the authority to schedule drugs. They chose to go after environmental regulations because they ideologically prefer capitalist interests over environmental ones. It is brazenly political, as was their overturning of Roe vs Wade.
But the FDA DOES have the congressional mandate by law to schedule drugs even details regarding what those schedules are.
The difference here is the EPA does not have the mandated far the reaching authority they are enacting which would fundamentally change the entire economy.
That's what the people with the creative interpretations on the constitution did. This is restoring to a previous commit before that happened.
SCOTUS isn't even really the engineering team imho, they're devops. If they're there just to enforce the rules, the rules are set just as much by precedent as by the letter of the law, since precedent is what is already working. They should just keep the system running and have a strong bias for favoring the status quo.
This court isn't "conservative" in the traditional sense; I would call them hyper-reactionary.
The court's job isn't to decide if the system runs well or not. It's to uphold the legal structure which was established long ago, because of the initial belief thaf in the long run a system without checks and balances will fall apart.
Federal branch agencies need clear limits to their power. There are many historical examples of why this matters. Congress failed to create clear limits for the EPA, and the court is telling them they need to do their job. That's the court's job.
I like seeing one branch of government do its job and keep another branch accountable. Nothing prevents Congress from granting them those powers explicitly - except for political will, which is exactly the point (agencies shouldn't be doing things for which there is no political will).
I think you're correct, but just to play devil's advocate...is it possible that as society get more complex, it prevents them from doing so? It's jarring to hear Congress talk about passing bills before they read them, but in the context of everything the would have to know in an increasingly complex society, it may be a sad fact that don't have the ability to both pragmatically and judiciously create laws.
Thinking in terms of software; it's easy to come up with hard rules for writing "Hello World" programs. But expand it to a space shuttle with hundreds of thousands of lines of codes, the number of interfaces grows so fast that creating centralized hard rules becomes nearly impossible.
If the system gets too large to effectively govern with understandable rules, then will be captured by special interests, which are the groups with the strongest incentives to create / understand these complex rules and use them to their advantage. This is called regulatory capture and the larger and more complex a system is, the more likely it will be captured.
This can be avoided by governing as close to the local level as possible (the subsidiary principle) so that you never have the complexity of governance grow to the point it gets captured.
Unfortunately strong central governments don't like their power being taken from them, and they are more powerful than any political organization within their territory, so in practice you have power move from local to national and rarely the other way around.
Central governance is, in some ways, a response to complexity. If you extend the "governing as close to the local level as possible" too far, you risk an unnuanced understanding because the local level can't be an expert on every system they interface with. For example, do you have the knowledge to accurately assess the risk when you take a flight? If you're like most people, you probably don't know enough about aircraft maintenance, or avionics, or pilot training etc. I know libertarians may disagree but don't think a mish-mash of localities helps in this case either, at least not in the short-to-medium term when you risk a lot of bad days before everyone agrees on a set of standards. This is exacerbated because of a lot of cognitive biases regarding how we perceive risk. Particularly with big systems with lots of complicated interfaces, the lowest level of effective governance may start looking an awful lot like a centralized government.
I would argue it could be better improved with fundamentally refocusing politicians attention. When half their time is spent campaigning, it obviously constrains their ability to craft policy.
Yes, and if Congress wanted to set these limits, they would do so.
Which, in the case of the EPA, they did.
The court looked at the limits, and decided they didn't like them.
So you believe the Supreme Court should not have ruled anti-racemixing laws unconstitutional, because they had been considered valid for 99 years since the passing of the 14th Amendment (which the Court used to justify its decision), whose authors were alive during much of that time, and hadn't mentioned that they've been made unconstitutional by its passing?
Or is it that if the court moves in one direction, that's okay and progress and living constitution. But if it moves back, that's hyper-reactionary and they should just maintain the status quo? In other words, you want a ratchet that only moves in the direction you like, even if it means ignoring the law in favor of the status quo (but only in cases where you like the status quo)?
Fixing this:
If the government were a software application, this is very much like a project led by three senior engineers for a system using a widely agreed upon Design that was flexible, but included boundaries. This consisted of Four major elements: (1) Codified Business Decisions, (2) Execution Environment, that mainly ran the project management, and the security (3) The Business Representatives, who created new Business Decisions, and a (4) User Community who ultimately controlled all of above, and paid all of the bills. The first three major elements regularly jockeyed for control over the software app. Over time, they deviated from the initial Design in ways that favored themselves and made the environment less favorable for the User Community. Business Decisions started to critique, and invent new business decisions out of thin air. Execution Environment tried to take over everything in spite of the agreed-upon Design, and existing Business Decisions. Even the Business Representatives went off the rails to favor the consultants that were treating them to fancy dinners instead of the business units they were sent to represent, and they started to define the future roadmap to include proprietary functionality, written by the consultants. But, the consultants also tried to subvert Codified Business Decisions and Execution Environment.
Over time, the User Community took actions to correct some of the most egregious errors by the Codified Business Decisions senior engineer that violated the original, as-modified Design. He did not receive an engineering change proposal that was funded and vetted by the Business Representatives, nope, he was just a cowboy. Through influence, they were able to impact the hiring of the newest crop of Senior Engineers, and revisit past errors. The new senior engineer in Codified Business Decisions revisited some of the decisions the User community claimed was encroaching. Codified Business Decisions finally stated that would undo what they determined was a bridge too far in a business decision that the Business Representatives had never supported broadly, and had never received agreement. They prioritized it as a fix in the sprint, and then pushed it. The fix came out, and the consultant class declared war. They'd been enriching themselves at the expense of the User Community for a long time. In a related topic, another member of the consultant class was caught by Execution Environment rentacops trying to assassinate a junior member of the Business Decisions Engineering Staff, for a similar decision with which the consultants disagreed. Other consultants declared they would kill off all the junior members of the Business Decisions group.
The fact that West Virginia v. EPA was brought up in the first place indicates that the system was not working, at least for some stakeholders.
Even if the system was working for most stakeholders does not mean it was Constitutional. The Court's job is to determine legality, but they need to wait until a case is brought before them, whether it's immediately or 10 years later. It's due process.
Congress did grant the EPA that authority; the ruling is an objection to the principle that Congress can make broad grants of authority.
Delegation of authority is key to every effective organization. Imagine corporations were governed like this, and any time a new service or feature was rolled out, the Board of Directors would have to explicitly sign off on it. Work would grind to a halt.
Which is exactly the point of this ruling, to make the federal government even more ineffectual than it already is as part of an ideological crusade.
That's entirely incorrect, please read the article.
The majority believes that's too broad a grant and that usage of that authority needs a second authorization from Congress.
> Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible "solution to the crisis of the day." But it is not plausible that Congress gave the EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.
It seems pretty clear that Congress does have the authority to delegate, but that the Court ruled that Congress didn't intend to do so. This ruling places the ball firmly in Congress's court, it doesn't rule that Congress cannot act.
[0] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
> Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.
I can find nowhere where they say that Congress cannot delegate broad powers, only that it's not obvious that Congress did or that they intended to. Do you have a citation to the contrary, or are you making assumptions based on the news coverage?
Imagine Congress passes an act next year banning abortion, and creates a new agency to enforce that act. The next year, a new method is invented that can induce abortions. Can that agency regulate it? By the logic of the Court, it can't, because Congress never explicitly authorized regulation of that particular form of abortion (because it didn't exist yet).
https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
If you think that isn't a broad, explicit grant of authority to regulate air pollution from stationary sources, I don't know what to tell you.
The majority on the decision are basically saying, "well, my gut says they didn't mean that much authority, so we're going to shut down this program."
The term "system of emissions reduction" means control technology like scrubbers. What the law says is that the EPA can do is look at the state of the art for things like particulate matter scrubbers, and set an emissions standard based on the reduction that can be achieved using those technologies.
But it's infeasible using current technology to scrub out CO2 from power plant emissions.
So the Majority asserts. The law, however, specifies nothing of the sort and intentionally uses broad phrasing.
The plain meaning of "system of emissions reduction" is "a set of measures that work together to reduce emissions" (as the EPA itself points out). And this is consistent with usage elsewhere in the Clean Air Act: in it, Congress refers to a cap-and-trade setup as an "emission allocation and transfer system." Systems clearly can be things that aren't just control technology.
The Majority is inventing an arbitrary and unsupported narrow definition of system for ideological reasons.
Apart from being clear from the individual statutory provisions, that’s the premise of the statute as a whole. The whole idea was that the EPA could limit emissions to the point that existing point sources could go out and buy equipment to meet the emissions criteria. The statute thus talks about BACT versus RACT and LEAR and whatnot. (I took a bunch of classes in environmental law in law school.)
If you read “system” to be a nonce word that can refer to any possible measure, then the statute makes no sense. The EPA could just pick an arbitrary emissions limit, and demand industry-level restructuring to hit that limit. That’s exactly what Congress was trying to avoid by imposing that requirement.
The statute as a whole clearly delineates between when it means to limit authority to technological systems of control. Elsewhere in different provisions, Congress declined to give the EPA broad authority as it does in 111, using phrasing like
"reflect the greatest degree of emission reduction achievable through the application of technology."
"best available retrofit technology"
"best available control technology"
"maximum achievable control technology"
Congress clearly was conscious of the difference between technological systems and more general ones, and it declined to limit the EPA's authority here to technological systems.
But the fact that those other things are all emissions control technologies strongly suggests that “system of emissions reduction” is referring to a some kind of emissions control technology, not a wholesale change in the operation of the industry.
If a statute addressed SVN, git, Mercurial, and CVS, and then had a catch all referring to “system for version control,” how would you read the meaning of the latter term?
Look at it this way. Wouldn’t it be odd for Congress to go to all the trouble of enumerating all these levels of emissions control technologies that apply in different situations (new sources versus old sources) and then have this catch-all provision that gives the EPA sweeping powers far beyond unrelated to emissions control technologies?
The court has stated if they want to extend their authority to the level they are enacting then congress must pass laws to expressly denote that intention.
States have rights in the original law. They are exercising this right and the court has agreed with them.
I think the last sentence in the original article sum's up why people are truly upset. Remember the court didn't say the EPA can't do these things in the future just that Congress would have to give it the authority.
From the original article:
"It's now clear this court will turn a sceptical eye to agency attempts to cite vague or broad laws to enact any sort of major regulatory changes. That's a significant development, given how difficult it has been for Congress to pass substantive new legislation in recent years. The time when presidents could find unilateral "work-arounds" in existing law may be coming to an end."
[0] https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
Where, exactly, are you claiming that the EPA ran afoul of the law?
Note the portion that states "taking into account the cost of achieving such reduction". This is in the very first paragraph. The argument is that they have not adequately done this.
It's about damn time if you ask me. As a country we need to hold our elected representatives accountable. We send legislators to congress to legislate not to simply be talking heads who pass the buck.
Also, consistently and repeatedly asking others to research for you is an easy debating tactic used frequently to bury inconvenient facts behind a barrage of requests.
I love it when textualists go anti-textualist.
If people are going to espouse an absolutist ideology, they should at least be consistent.
> Section 111(d) thus ensures that EPA regulates existing power plants’ emissions of all pollutants. When the pollutant at issue falls within the NAAQS or HAP programs, EPA need do no more. But when the pollutant falls outside those programs, Section 111(d) requires EPA to set an emissions level for currently operating power plants (and other stationary sources). That means no pollutant from such a source can go unregulated: As the Senate Report explained, Section 111(d) guarantees that “there should be no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health or welfare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that language, the majority calls Section 111(d) a “gap-filler.” Ante, at 5. It might also be thought of as a backstop or catch-all provision, protecting against pollutants that the NAAQS and HAP programs let go by. But the section is not, as the majority further claims, an “ancillary provision” or a statutory “backwater.” Ante, at 20, 26. That characterization is a non-sequitur. That something is a backstop does not make it a backwater. Even if they are needed only infrequently, see ante, at 6, 20, backstops can perform a critical function—and this one surely does. Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance’s emission from existing stationary sources. In that way, Section 111(d) operates to ensure that the Act achieves comprehensive pollution control.
That's pretty damn explicit.
That's pretty clearly a broad delegation of regulatory authority.
To use an analogy, nobody is saying that the DOJ needs authority to create drug diversion programs. But this is like the DOJ pointing to the drug laws to justify a sweeping effort to combat the obesity epidemic.
Restructuring the energy industry to address climate is a different solution to a different problem, related only by the commonality of emissions into air. It’s like using drug laws to regulate processed foods because both involve harm caused by ingesting things.
This is objectively false, the supreme court just ruled that. Like it or not, they are the sole authority on said issues / decisions.
Four. A tail is a tail, regardless of what you call it.
Congress intended to grant the EPA broad authority to regulate pollution, but the SCOTUS said that that's invalid.
The Supreme Courts job is to determine if something was legal, they were granted the authority by the people. If we want to change that, congress (the people's representation) can amend the constitution.
Congress can also clarify by granted the authority (as the justices explained). At any point in the last 7 years (while this court case has been ongoing), congress could have enacted the laws, they discussed them. The regulations didn't pass. The supreme court pointed that out.
Why would congress put forth these rules if they had already granted the EPA the authorization? -- because the EPA never had such authority.
:laughcryemoji
> Congress can also clarify by granted the authority (as the justices explained). At any point in the last 7 years (while this court case has been ongoing), congress could have enacted the laws, they discussed them.
There's no need to explicitly grant authority for authority already granted. If Congress wanted to change the scope of the EPA's authority, Congress could just as well have passed a law stripping the EPA of that authority. It didn't.
No, they invented that authority for themselves in Marbury v. Madison[1]. Judicial review, the idea that SCOTUS can decide whether the actions of the executive or legislative branch are legal, is contained nowhere in the constitution.
Also of course, this is exactly the separation of powers, which is completely fundamental in all western societies.
My reading is that it gives authority to federal courts to determine if a law has or has not been violated. What would the other intent be of creating a judicial branch? (Not said with snark, just curious).
"You give (a) Authority to a system of federal courts to judge whether or not a law has been violated..."[1]
[1] Findlay, B.A. and Findlay, E.B., 1919. Your Rugged Constitution: How Americas House of Freedom is Planned and Built. -.
Congress makes a law. The Executive branch executes the law. The Supreme Court interprets whether that law was broken during its execution.
If you take out that third leg, is the assumption that Congress must revoke the law to provide a check/balance? What if the intent was good, but the execution was bad?
There is the 9th and 10th amendment that do not seem to get much coverage in court rulings.
The 9th amendment is made to ensure the federal govt doesn't have sway over unspecified rights; is your thought that the States would enumerate those rights separately?
In any event, I suspect you're right. It seems like the the balance of power may be more biased than the founders intended.
The balance of power has definitely changed since the countries founding. If you read about the Virginia and Kentucky Resolutions of 1798, you don't see states doing this anymore.
If so, what's the solution? Term-limits on judges? But then doesn't that ensure they will be even more politicized?
CO2 is not pollution. People and animals breathe it out. Plants breathe it in. Any such thing is obviously not pollution. The EPA calling it "pollution" does not make it pollution, any more than calling a dog's tail a leg makes it a leg.
If Congress wants to grant the EPA authority to regulate things that are obviously not pollution, in order to promote some other policy objective, it needs to say so explicitly. Which is exactly what the Court's opinion says.
Even if you personally dispute it, Congress explicitly granted the EPA the authority to determine what's an air pollutant and what's not:
> For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant—emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;
The fact that all of the parties and judges are calling a tail a leg, still doesn't make it a leg.
And the SCOTUS has the authority to rule on whether the EPA's rulemaking is within its statutory authority or not. Which is what it did today. So why are you objecting? Both governmental entities are exercising their authority. The fact that one such exercise, the EPA's, is one you like, and the other such exercise, the Court's is one you don't like, is irrelevant, according to your own logic, just as it's irrelevant, according to your own logic, that the EPA's rule under review here defies logic, common sense, and the plain meaning of words.
So, sure, I'm criticizing the Court's decision, because it's an incoherent and ideologically motivated decision. Doing so helps remove the mystique of the SCOTUS justices as some kind of apolitical actors in the sytem.
No, you are the one who shifted your ground, not me. You started out arguing that calling a tail a leg doesn't make it one--but you only applied that argument (incorrectly, in my opinion, but that's beside the present point) to the SCOTUS decision you didn't like, not to the EPA rulemaking you liked. Then, when I called you on it, you retreated to the argument that the EPA is just exercising its authority--which applies just as much to SCOTUS. So make up your mind: are you going to base your position on actual logic, common sense, and the plain meaning of words, or on government entities exercising their authority no matter what?
> I'm criticizing the Court's decision, because it's an incoherent and ideologically motivated decision.
I disagree that it is, since it's just pointing out that Congress didn't intend to delegate to the EPA the sweeping authority to restructure the entire energy sector of the economy, even if we accept that CO2 is a "pollutant" for the sake of argument. The statute does not give the EPA authority to regulate pollutants however it wants. It only gives it the authority to do so in certain ways.
That said, however, I'm criticising the EPA's rulemaking on the same grounds that you are criticizing the SCOTUS decision: that it's incoherent and ideologically motivated. Any such criticism presupposes that just because a government entity has the formal authority to do something, doesn't make it right. So it is no answer to my criticism to say that the EPA was just exercising its authority.
Suppose I piss in your drink. Have I polluted it, or will you drink it?
'It's not pollution if it comes out of animals' doesn't make much sense.
That's not the argument I was making. The argument I was making is that the presence of CO2 in the atmosphere is part of a natural process that all living organisms, including us humans, engage in. The presence of your piss in my drink is not.
That said, since these are products of the animal's metabolism, I would not consider them pollution if they're just being exhaled into the surrounding air outdoors. If you bring your animal into my climate controlled clean room and have it exhale the compounds there, that would be different--but I doubt the EPA would be the first line of defense in regulating behavior of that sort.
Meaning, you can claim they are bias, but the EPA still doesn't have said authority.
Nothing you, I or any pundit says will change that. At least until congress grants it said authority. Which as SCOTUS pointed out, congress tried to do, but congress didn't pass the legislation. Now.. why would congress try to pass legislation if the EPA already had said authority?
You're arguing for simply the ability to execute the will to power being the determinant of whether something is right or not. Which is entirely your prerogative, but you should be aware of what you're signing up for.
What is the function of the supreme court? (seriously, what do you think it's job is?)
It said congress didn't authorize this, ask them. I don't see how that's at all controversial.
They did. The House and Senate passed different language, and it never got reconciled.
"The first related to an oversight during the reconciliation of the Clean Air Act amendment in 1990 that resulted in the House and Senate versions of § 7411(d) to never be reconciled, and both versions were codified into the signed law. The House version had stated that because other parts of the Clean Air Act had covered regulation of carbon dioxide, the EPA could not use § 7411(d) to cover carbon dioxide emissions from existing plants, while the Senate version allowed for § 7411(d) to overlap carbon dioxide emissions coverage." - https://en.wikipedia.org/wiki/West_Virginia_v._EPA
Due to a fuckup, SCOTUS got to pick the side they preferred.
Regulatory agencies exist based on the theory that Congress can leave it to agencies to "fill in the details" of a law as part of the executive discretion about how to enforce the law. In the Clean Air Act, Congress gave the EPA authority to pick toxic pollutants to regulate, and to specify the use of particular emissions control technologies like scrubbers.
What this case was about was whether this grant of authority could be fairly read to encompass telling entire industries what power generation mix they must use.
This is not like requiring the CEO to sign off on a minor bug fix. The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization. Even huge companies routinely require executive approval for major new initiatives that will incur major costs to the company.
> (1) The term "standard of performance" means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.
Congress intentionally broadly authorized the EPA to determine and implement the best system for reducing pollutants such as carbon emissions, and used language pursuant to that. Just because it offends certain Justices' sensibilities and ideological predilections doesn't mean that they can choose to ignore clearly stated parts of lawfully enacted statutes.
DEA, ATF, FDA, OSHA, CFPB, CDC, EPA, and FCC would all tend to disagree with this assessment.
There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
> The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization.
Again, the EPA is checked by both the executive branch AND congress through the CRA. Both of which are checked by the people.
Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing? Doesn't that signal that maybe there's a major problem here?
They are picking the conclusion they want to reach and writing the opinions that support those outcomes. They are legislating from the bench.
To be fair, you can do this with judges on both sides of the partisan divide.
It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
At the supreme court level? Yes, because it takes 4 votes to chose which case gets cert and we have 6 activist justices that want to completely rewrite jurisprudence for political gain. How are the liberal justices supposed to vote when the questions often being asked are now "Hey, should we overrule this long standing precedent for political motivations?"
However, standard jurisprudence isn't nearly this bad in the federal court level. The outcomes there can be far more difficult to predict based on who appointed them.
> It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
While I don't disagree, unfortunately the constitution was setup with the notion that the SC would be above political divide (hence, being unelected and having lifetime appointments.)
I certainly wouldn't mind some sort of constitutional amendment trying to address that. Though, I just don't see it as likely.
They wouldn't, at least not to a court's face. You mention "Chevron deference" below, but the whole idea behind Chevron deference is that agencies are exercising executive discretion in enforcing the law, not making new ones.
> There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
The Constitution gives the power to make laws to Congress. Full stop.
> Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
Judges in the mid-20th century engaged in massive political activism to rewrite the Constitution from whole cloth. Undoing that tomfoolery is not itself "political activism."
> You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing?
It distresses me that you can predict how liberal justices will vote on any significant case. It brings me great relief that conservative justices are full of surprises. Just in the last few years, ACB was supposed to overturn Obamacare (she voted to uphold it), Gorsuch and Kavanaugh were supposed to find that the Civil Rights Act doesn't protect sexual orientation, etc.
You're being unfair to the liberal justices here --- there are surprising votes from liberals on QI cases (Rivas-Villegas, Talehquah), habeas (Brown v Davenport), state secrets (Zubaydah), social spending (Vaella-Madero), and immigration (Aleman Gonzalez). You cannot simply predict a liberal justice's opinion from their ideological inclinations. Not even Breyer, who is the most boring liberal justice (he wrote the opinion on Zubaydah).
Meanwhile: Gorsuch is often surprising --- not just on the Native American sovereignty cases, but also on habeas (Shoop) and immigration (Patel, an excellent Gorsuch dissent).
The other conservative justices? Not so much! In particular: you can reliably predict Alito and Thomas, the two most blinkered justices on the court regardless of ideology.
By the way, and apropos nothing here, everyone should read Egbert v Boule, not just because it's absolutely the most ludicrous (and funny) case you'll ever read about that reaches SCOTUS, but because it's a far-reaching and bad decision.
I think an overlooked aspect in all of this is how dramatically judicial philosophy has changed in the past few decades, across the board. Breyer, Kennedy, O’Conner, and Alito were from a generation that believed in the notion of judging as dispensing justice from on high. Younger folks like Kagan are uncomfortable with that even when though they seek to preserve liberal precedents built on that sort of judging.
The result of that is that younger conservatives find these older precedents incomprehensible, and younger liberals have a tough time defending them on the merits. Egbert v. Boule is a good example. I think the dissent probably had the better argument if we think of Bivens as anything more than an aberration that ought to be limited to its facts. But I struggled in reading the dissent to find any reason to treat Bivens as correctly decided. I remember being skeptical of Bivens when I first encountered it as a 1L, but to my recollection the opinion at least offset the tenuous reasoning with flowing judicial rhetoric. Sotomayor’s dissent, written in a modern analytical style, doesn’t even accomplish that.
That said, I would like congress to take up the matter of clean air and water directly, instead of this cowering behind other agencies after abdicating of their duties.
Exactly - put them on the record voting for or against whatever they want - and the voters can vote to replace or keep those people based on how they actually voted - right now they all like to give speeches, raise money and not much else - congress, do your job, even if it costs you your job.
Luckily nothing stops Congress from making laws that clarify what they granted the EPA. If they were so fussed with the EPA doing what they were doing, why didn't they leap up and pass a law that told them to stop?
Why is it the court's job to tell congress what they meant to say? Is congress mute?
> Why is it the court's job to tell congress what they meant to say?
That's... not what they're doing. The court is telling Congress that if you want an agency to have the power to make vast, sweeping changes, then you have to be explicit. They don't get to create an agency and then just give them blanket authority to do anything they want, at any scale.
Congress is not mute. Congress speaks by passing laws. Any other, less formal means of speaking is the voice of members of Congress, not Congress as a whole.
The supreme court has no enforcement mechanism. It has no army, no police. Abiding by Supreme Court rulings is by tradition only.
>Where ambiguity exists, it is the court's job to interpret the law. That's literally the entire purpose of a court.
This is also by tradition only. The Constitution doesn't specify this, nor are there any laws that say this is the job of the court.
That's simply not possible unless we have literal laws for every possible infraction - like a state machine for the human condition.
Leveraging the executive branch as the government creates a bipolar governance, every 4-8 years we have a totally different country and outcomes.
We need a functioning legislator.
How we go from here to there is unclear, but necessary
Others would say they are implementing the details of broad brushed Congressional laws.
[1]: I'm trying to find the source. Something to do with the commerce clause I think. There was a court case where the government clearly argued that even local actions inside the state count as interstate commerce. Edit: https://en.wikipedia.org/wiki/Wickard_v._Filburn?wprov=sfla1
That's not guaranteed. Has it been challenged?
By the same logic, I can never collect my own rain water as it would impact interstate commerce.
Similarly, I could never have a free school play for parents, because I would be taking money away from local theaters, and that would eventually resonate to interstate commerce.
The Constitution's interstate commerce clause has been purposely misinterpreted to mean regulation of commerce within a state if you can abstract nth order effects to another state. In actuality, all it is supposed to to is allow the regulation of commerce across state lines, meaning regulation on the transport of materials from one state to another.
"""The Supreme Court decision ignored and damaged long-standing Constitutional principles designed to limit the power of the judiciary. Courts are not allowed to just issue pronouncements of what they think the law should be. They can only act to resolve a real controversy between adverse parties and enforce the will of Congress. Instead, the court changed a lawfully enacted statute without having any final or even proposed regulation before it. There is no “case or controversy” here, which for 200 years has been a rock-solid prerequisite for judicial action. Hence, the opinion violates the long-standing separation of powers principle, which until now, has restrained the judiciary from ideological adventuring."""
It appears the court has done exactly what you said they cannot. If you disagree then I would ask: What case was brought before the court before they made this ruling?
West Virginia vs. EPA was the case this ruling was made on. The article is whining because the regulation that West Virginia sued the EPA over was already pulled back, and somehow that means they can't be sued anymore? Completely disagree with that line of thinking.
And given that, we are in a lot of trouble."
If what you're saying is true, then the same could be said if the rulings went the other way. Basically the whole system is an oligarchy and the winning side will claim legitimacy and logic, while the losing side complains about a lack thereof.
So what is the solution?
Edit: why disagree without discussion or providing the solution?
Stop sending SWAT teams at people already trying to do this? (https://youtu.be/i4Hnv_ZJSQY?t=250)
Everybody who looks hard enough knows that neither of these things will happen and we know why. That people ignore it or pretend otherwise is the real problem at the root of this whole situation.
I am trying to point out that if you start from that premise you prejudice the kinds of diagnoses and solutions to any potential problem you come up with. Which is of course the exact reason that the parties who stand to gain so much wealth and power from the exercise are so desperate that this should be the default, and why to the extent there is a problem that might be solved, quick, easy and relatively cheap direct voluntary action solutions need to be hit with SWAT raids lest the power and wealth that might be attained from nebulous, slow, difficult and extremely expensive solutions which are by contrast pushed by force upon the entire planet.
The only reason why I come back is because the technical discussions are incredibly good.
Note that libertarianism leaves people free to care for others as much as they want to.
I know there are many libertarians who give the philosophy a bad name.
If you have something specific you'd like to ask about it, I'll try to give a good answer.
The American people are also the most generous in the world, by donations to charity.
I know that the popular view is the US is some sort of hellhole, but yet millions of people are trying to immigrate here, walking thousands of miles just to try.
"The American people are also the most generous in the world, by donations to charity." Why can't we just setup government programs to fill the in the gaps that charities provide?
There are a lot of people from Romania in the Seattle area, I am friends with some. I am not unacquainted with their stories of how bad things were there. All I can say is welcome to the US!
P.S. All my ancestors hail from various European countries that emigrated to the US, including Germany.
Also, your friends are probably from a select group of people who came in highly educated. People who come in with 0 education (like my parents) are not treated well in America. Many of the Romanian families that I grew up with in South Florida have gone back, as America honestly isn't that great compared to what has developed in Romania over time (its pretty nice now!).
I've also run into two Afghans who escaped from the Taliban here with nothing, having lost everything in Afghanistan. They started their own businesses and are thriving here.
> Cuba (which is not socialist to be clear)
Of course. A common theme of all socialist governments is socialists deny their children.
Presumably you mean political ideology, but I don't really know if I know what "libertarianism" actually means. I would need some citation that the Ayn-Rand-esque objectivist flavor of libertarianism has actually done any good for anyone. Maybe that's not what you mean, but that's sort of the issue with the term.
I might be more likely to agree if you changed the term "libertarianism" to "liberalism". Not the current "liberal" that basically means "democrat" in the US, but the more classical sense.
Note that this precludes any right to harm others, defraud them, enslave them, etc. It precludes enshrining religion into the law.
It includes all are equal under the law, women have an equal right to vote, gays can marry, people can smoke marijuana, etc.
As with all philosophies, it doesn't give guidance to all situations, and should be leavened with pragmatism.
/s
HN is just a forum. Its not much different than Reddit, its just more moderated which I greatly appreciate. I think the people aren't stupid. Its just that people have grown up being told the Supreme Court was some non-partisan objective organization, when really is full of partisan hacks and law by very nature is political. Its hard to undo years of hearing the same thing.
I spent a few years researching all viewpoints to figure out my position. Didn't realize I would be hated for thinking for myself.
If there's one thing I've learned in my life, is that a scary-high number of people who are supposed to be on my side, who are theoretically my people, are diametrically opposed to my entire life, and are merely pretending to tolerate my continued existence.
It seems to me that you just built up your own little fantasy world, and are shocked that reality doesn't align with it.
That's the reality a lot of people face, and the people who don't face that are completely oblivious to it.
You're definitely right that I shouldn't have assumed but it still hurts
So...like hedge fund operators?
~I'm~ a programmer tho so when they're bad it makes me sad :(
Like I said I know it's naive to think that
The court’s position that the executive cannot unilaterally govern by bending the rules is a good thing! The problem is that the line they draw is arbitrary - and they just insert their agenda at the boundary.
The perfect thus becomes the enemy of the good, because the court chose a questionable boundary and because the legislature is now responsible for passing the necessary laws - as they should. In reality, they won’t do that, but that’s not the court’s fault.
Now you can certainly make the argument that the court should stick with the precedent of deferring to the executive instead of the legislature (laws after all, cannot anticipate everything and the court can avoid having to create arbitrary boundaries). But that’s a conversation that’s got nothing to do with climate change or any specific outcome.
For comparison, how did you feel about the court deferring to the Trump executive? Was their rule bending something we want to see more of? If a liberal court broke with precedent in the same manner to restrict Trump from doing something crazy, would that be good?
As someone that supports far harsher emissions regulations than were in effect even before this ruling, is it too much to ask that laws should be clear? As others have pointed out, there's no limit to the danger posed by letting the executive branch creatively interpret legislation.
Let me lead by saying I'm a pro choice person, and hope federal legislation is passed protecting abortion in all 50 states:
Roe V. Wade is a good example. The justices didn't find any mention of "abortion", any description of abortion, or any medical procedure whatsoever in the constitution, or any mention of "trimesters". Yet they found by using a combination of no less than 5 amendments, that it in fact was protected, and then the supreme court decided exactly how long into a pregnancy abortion could be banned. They probably had consistent logic in what they said technically, but it strained credulity too much to believe they actually thought the constitution, in the text as it was written, protected a right to abortion.
Would you agree the sword cuts both ways with regards to the statement:
> I don't believe people on this site are too stupid to realize that, I believe they prefer not to, because they support the outcomes these rulings enact.
And I think we should start talking about abortion directly, not through 50 layers of legaleze.
The only way a pro-lifer on HN can express their opinion is indirectly, through technical criticism.
But why can't they express their pro life opinion directly? Because people will disagree with them? The only thing people do on HN is disagree.
This is the issue that needs exploring, not the intricacies of judicial logic.
Growing up on the internet (IRC, Forums, eventually HN, etc) there was always a "hacker" or "libertarian" spirit. Less government ("the man"), less regulation, more freedom, more ability to create and inspire.
Now, I see many people (often the same people) seemingly become hyper partisian when the Supreme Court saying "congress never authorized this, they'd need to to make this legal". All the recent court rulings have been very consistent that "the will of the people (congress) never approved this".
IMO you're correct, the Supreme court is partisan. However, this feels far less partisan than normal and the reasoning seems to be sound (congress never implemented this law / passed an amendment / etc). In the courts opinions will often explain how to make it a law / legal.
The shock I've experienced with the HN community is how it's been far less thoughtful as late (3-4 years) and discussions are suppressed / devolve quickly. The idea of the libertarian ethos of the "hacker" community, to me, appears dead. Now, I see a far less thoughtful, more partisan, more angry community. Even in your comment, you mention you "hate" the community (I'm assuming you mean just parts of it). It dismays me.
If we assume that each Justice subscribes to a consistent theory on how to interpret the Constitution, you omit a discussion (much less a proof) that at least one Justice's theory is 'partisan', that the theory being partisan would be bad, or to make a foundational move, that a theory that is nonpartisan exists. I think there are interesting discussions to be had on all of those topics.
I think your post is too strongly worded, being a triple attack on the hn community, the Supreme Court, and the state of American politics.
On this particular topic, it's infuriating to see the average HN bozo think of the constitution as a set of unit tests for justices to run through.
https://today.law.harvard.edu/scotus-preview-west-virginia-v...
> “Supporters of the major questions doctrine would characterize this as taking power away from agencies and giving it to Congress, because they would say Congress is democratically accountable, and therefore should be making the major policy decisions,” says Goho. “Critics would say, ‘No, what’s happening is you’re taking power away from agencies, which have some degree of democratic accountability to the president, and you are actually granting the power to the courts, which are not democratically accountable at all.’”
This is the first step in dismantling regulatory bodies on a federal level. I have no idea how people can be supportive of the decision. It seems insane to me.
People are dissilusioned by organizations out of their reach that can harm them, and they do not feel they are represented.
Iron Law is the name of the game for long standing organizations. That is, preserve the org first, not complete the mission. When you look into the deep history of federal corruption it's plain as day that it's overwhelmingly a political wheelhouse with only a sprinkle of objective.
Federal agencies that were once founded in earnest are long taken over by this principle. The founders have left the building.
This is a gross misrepresentation. Civil servants can follow processes within the bounds set by Congress and are required to follow agency processes which are set carefully, with deliberation and public comment. There are appeals processes and the court system as remedies.
Yes, you hear about “abuses” – that’s because there’s an entire industry pumping out propaganda to support outcomes like this. The vast majority of the time when you look at the details it turns out either to be substantially different than claimed or a problem created by the Congress which the agency would prefer not to be saddled with.
The underlying problem here is that the Congress keeps getting slower & less functional. Delegating power more broadly helps reduce the impacts of that but at some point we have to make the Congress work better and that’s really hard to do when one of the major parties has a platform based on the idea that the government should be dysfunctional.
Courts are no longer effective remedies for the average individual. The requirement of lawyers to operate courts excludes justice from anyone but the wealthy. As costs of education and elitism rise lawyers are becoming increasingly harder to find.
Large government is by nature dysfunctional. Same as mega corps. The larger you get the more inefficiency you attract and the more you can push out competition. As this increases people want anti trust.
The people want anti trust applied to the federal government.
Simple. End of story. If the Supreme Court has one job it's punting shit to Congress--the appropriate branch.
[1] https://www.nytimes.com/2022/06/19/climate/supreme-court-cli...
For the coming years you'll be seeing the same approach used in this decision to rip apart everything from labor regulations to HUD programs.
When contradictory evidence or arguments are present, it's easy to pick those that support your predetermined position and ignore those that don't. It's nothing to be proud of, and in fact it's usually considered shameful. In formal debate it's a sure route to an ignominious loss. Parallel construction is the equivalent in the legal world, and equally condemned. It's when the prosecution comes into possession of evidence illegally, and then makes up an alternative provenance or reasoning because admitting the truth would get their case summarily thrown out.
This is what the conservative wing of the supreme court has been doing. They're picking and choosing, highlighting pretty dubious arguments and ignoring those which its own principles (e.g. judicial restraint, stare decisis) would give more weight. It's even more despicable for them than it is for prosecutors. Anyone who praises the "consistency" of this decision is at best falling for the trick, or just as often repeating it themselves because the decision supports a view they held long before they ever heard of this case. This discussion is full of such motivated reasoning, as most here are, and I'm pretty sure that's the cause of parent's contempt. If this is truly supposed to be hacker news full of curious people and not just another political rag disguised as a tech-news site, you all need to do better.
That temptation I feel bad about, and I do think the mutual refusal to admit similarly fanciful teleology will continue to worsen until our respective political leaders set better examples for us.
In the mean time, I’ll continue to have productive discussions and affect legislation and policy alongside people with which I both disagree and agree, hoping that the productive attitude will affect levels above my influence until enough of us change federal government.
Wishing you’ll do the same.
And, Barrett couldn't even cite the first amendment...
If this was true it would have been the case for all previous court panels. That it's not shows that it's the court playing politics now.
Congress didn't pass a law and disappear. If Congress felt that the EPA was misinterpreting the language of the Clean Air Act it could have passed a law limiting the agency's powers. The fact that it did not do so is the strongest rebuttal to the claim that the EPA was operating outside its mandate.
This decision is an announcement by the Court that Congress can no longer be trusted to govern the agencies it oversees.
> The emergency here is that the EPA now has no idea what its authority will be on any regulatory actions regarding CO2.
That's hyperbole.
It is not congresses job to enforce the law by writing new laws.
They'd have done this regardless of the state of industrialization or 1% hate. It's an alliance between religious fundamentalism, and the business community, and what they want has stayed constant despite the short term ebbs and flows of politics.
Also, please don't buy into the states rights nonsense. This group only believes in states rights when they don't control the federal government.
It's really best to just not listen to what it says, and instead look at what it does.
:P
It is common and reasonable for legislation to delegate responsibility. Administrative rulemaking has been around for a long time and will continue to exist.
As Chomsky said, the US Republican party is the most dangerous organisation in history. Congress has been captured and they won't undo this.
This might become one the most significant stories we'll read in our lifetimes.