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Comment by biggieshellz | Hacker News Reader

Major questions doctrine. They ruled that the current law does not empower EPA to require producers to shift generation to different methods (e.g. natural gas, renewables), and that if Congress had meant for the law to do that, they would have written it explicitly.

Congress can still pass a law empowering EPA to regulate greenhouse gas emissions.

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> Congress can still pass a law empowering EPA to regulate greenhouse gas emissions.

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.

They’ve declined to do a lot over the last decade :)

Moscow cocaine McConnell has sand bagged any progress on anything substantive in return for the handsome bribes he’s accepted and arranged.

Well, see, that's exactly the question. How broad was the authority that Congress gave them?

"Congress gave them broad authority" != "they have authority over everything they can in any way claim relates (however loosely) to their mandate".

I think the argument is that the EPA considered itself to have broad discretion and congress was silent on the matter, and more generally do the executive functions have whatever discretion they assume to have unless congress specifically limits them? Or rather, do they have only the permit that congress gives them?

That's a horrible argument. The Executive branch should never had default allow permissions for anything. The amount of mental gymnastic many of our current regulator bodies have used to claim more authority is already obscene.

No they can't. I mean, legally they have the authority to do so. But congress is pretty broken. By the time a congress is elected that can effectively legislate a solution to climate change, it will be too late.

Giving a broken legislative body the sole responsibility of literally saving the world is a really, really dumb idea.

Do y'all not consider how the EPA came into being in the first place? It exists because a previous congress did do something and delegated their authority for a very specific reason. Like it was a joint effort between Republicans and Democrats even.

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.

Congress has to be explicit with what powers they delegate. They can’t just say “do whatever you want to fix this problem”. Neither does it say that in the law. It’s not the job of SCOTUS to give you the outcome you want. It’s to rule on what the law does say and is constitutionally acceptable.

Congress granted the EPA power to regulate air pollution. CO2 and methane are harmful pollutants that cause a greenhouse effect, and the EPA was granted the authority to address this. Our activist extremely biased Supreme Court has several members who are part of a political advocacy operation called the federalist society and ensures that members get Supreme Court placement specifically to achieve federalist society goals. Nothing about this is secret. Nothing about this is acceptable

Ah yes, but that would require Congress to actually do something, which hasn't happened in the last 18 months so we shouldn't expect it to start.

Congress could have mooted this case with ordinary statutory procedures at any point, but did not.

But they probably should, and I hope this will get them to do it.

Impossible because their 50th guy in the Senate is a W. Virginia coal mining millionaire. He's all but literally the appellant in this case.

Unlikely. Republicans were only barely willing to work with democrats after the latest in a long string of people gunning down school children. Since hatred of the environment is practically a party platform, they certainly aren't going to cooperate on giving the EPA anything ever.

I think a good thing that laws can't pass without sufficient consensus. If you can bypass consensus for the greater good then so can the other side.

This statement is an obvious assumption of democracy. Am I missing something more?

The issue is one of "arms racing".

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.

Yet another reasonable comment that some shadow bully has downvoted gray.

HN is broken

HN is very ill-suited to discussing politics in general. That's a known feature.

It might be obvious, but I feel like it's lost due to partisan motivated reasoning. eg. when your preferred party doesn't control the senate, then the filibusterer is an important part part of democracy that forces widespread consensus, but when your party does control the senate the filibusterer is a undemocratic tactic used by the minority to obstruct the majority.

The key word here is "sufficient consensus." Your judgement of sufficiency is a personal opinion.

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.

The rise of China is testing and will continue to test this assumption. The Chinese government does not require consensus. It can build 40,000 kilometers of high speed rail in just a few years. It can pull hundreds of millions from poverty. It can shut down entire companies and industries overnight (e.g. private school tutoring), jail corrupt corporate executives, and in general coerce compliance to any law.

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.

They’re ruthlessly efficient at persecuting the Uyghurs as well. I’m not sure “ruthless efficiency” is actually that desirable in a government.

China does not have a monopoly on persecuting minorities, especially in comparison to the United States.

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...

> The US's genocidal oppression has been ongoing far, far longer than the oppression of the Uyghur people.

And knowing that, you'd take the guard rails off? Crazy.

I'm not sure what you mean in this context. Which guard rails off of what?

The system of checks and balances that impede the efficiency of the American government.

Sorry, I'm not sure what I said that implies I would want that.

China is one extreme. The other extreme is the United States, which isn't able to accomplish anything, good or bad. All the US does anymore is renaming post offices, mailing social security checks, funding the army, and tax stuff. Tax cuts, tax credits, tax rebates, tax incentives.

China may well supersede the United States in the future, despite its treatment of minorities.

They also can't enforce building codes leading to fires that kill a lot of people, have no real food safety and dramatically impinge on any sense of individual rights.

We can do the same kinds of things in war time and have.

One man’s consensus is another man’s deliberately bought off by an unholy alliance of special interests and stupid people.

I agree, but the current political climate has made consensus appear as weakness.

The problem is that our federal legislative system is heavily tilted in favor of Republicans despite them being firmly a minority party. This is most apparent in the Senate, but gerrymandering gives them an edge in the House too.

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.

Consensus doesn’t just mean 51%. It means general agreement. If you have 100 people in a room, 51 people are in favor of something and the other 49 are not, is that your “consensus”? Prior to the US each of the states were their own sovereign entities. Why enter the US (or stay in it) if you are going to be ruled against your will? The states agreed to give up some of their power and joined under the explicit conditions of the senate that they would have an equal say.

These are a little dated but:

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-...

This is as much a blow to chevron deference than anything. This is a good thing.

Please explain.

I'll attempt to explain on their behalf: technocracy bad, regulatory capture good.

Don't put words in other peoples' mouths. Especially strawman words.

It's not honest, it's not nice, and it's against the site guidelines.

This is a decent definition: "administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer." The ruling basically undermines the previous notion of the judiciary deferring to an administrative agency, because it just didn't, therefore forcing the legislature to be more explicit in its desires.

Why do you see a blow to the chevron deference doctrine as a good thing?

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.

> 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.

The "lifelong bureaucrats" are typically (but not always, see the CDC) policy and subject matter experts.

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.

> The "lifelong bureaucrats" are typically (but not always, see the CDC) policy and subject matter experts.

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!

I'll try and read into your low-effort dismissal here a critique of my singling out the CDC and explain further:

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...

What agency would you hold up as an example of competence, sanity and political independence, then?

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

Your post is a couple of pot shots at departments that do thousands of things every day and some unsubstantiated claims. Here's guest piece by those two FDA staffers who resigned explaining their disagreement with the administration [0]; the headline is "We don't need universal booster shots. We need to reach the unvaccinated." It's a pretty good piece written by people who sound--at least to me--like policy and subject matter experts. The VA is the largest socialized health care system in the world. Etc. etc.

---

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...

The buerocrats take their orders from the president, and if they don't can be overruled and fired by the president, who is elected by the people every 4 years. That's a pretty big difference, no?

The Supreme Court can just ignore its own precedents, so this doesn’t really help.

> Supreme Court can just ignore its own precedents

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.

Stare decides bound Casey, at least. It's never before been ignored when it established a new individual right (Dobbs overturns precedent to remove a right, which has never been done before). This really can't be minimized as "Courts gonna Court".

The least democratically responsible branch of the US federal government is the administrative state.

How are civil servants less responsible than supreme court justices that are appointed for life? At least with civil servants they can be fired.

How do you see the Supreme Court as being more democratically responsible than the administrative personel of the executive branch?

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".

I haven't read the opinion in detail but it doesn't appear they touched Chevron, merely ruling this particular case falls under the preexisting major questions doctrine/exception to Chevron.

If you read the dissent they seem to be claiming the majority opinion greatly expands the circumstances in which the major questions exception applies. Which would be a big hit to Chevron making it apply in far fewer cases.

> Congress can still pass a law

Since when

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