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Comment by asdajksah2123 | Hacker News Reader

It's not clear to me if the court has ruled broadly regarding delegation here (we still need experts to read through the entire ruling), but they've clearly indicated that they believe that delegation is not okay with them.

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.

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> this court will reduce the Federal government to a non-entity very soon

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.

> All Congress needs to do…

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?

Deadlock is the point, less is more, worse is better.

I agree that that appears to be the tactic in use.

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.

A political supreme court would be a Republican supreme court, presently, meaning this is actually a high point for how happy Democrats should be about textual originalism.

I don't see a lot of Republicans annoyed by anything the Supreme Court is doing - every decision they've made since repealing Roe seems to favor the right and undermine the left. Trump's list for Supreme Court appointees was written by the Federalist society, which is politically biased in favor of Republicans, libertarians and Christian conservatives.

The question is whether the precedents established in these cases will be respected and "swing both ways" in practice as they do on paper, or whether the SC will conveniently discover new legal principles to avoid them when, say, the legality of NSA's programs eventually comes up.

Deadlock is a feature not a bug. You want deadlock because one side or another pushing their agenda against the majority is the road to totalitarianism. If there is a deadlock, should one side of another simply dictate? Of course not.

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.

There is a difference between a system working as intended, and a system working well. Given that the US constitution is now 230+ years old, we are seeing a huge divergence between the two.

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.

You may claim an old constitution is a problem - I see it as a reason for optimism.

The US is the world’s oldest democracy in no small part because of that document.

The US is not the world's oldest democracy...

Justice Scalia basically agreed with you: gridlock is essential for protecting minority interests.

> 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...

https://www.youtube.com/watch?v=Ggz_gd--UO0

Conservatives love deadlock, it means the federal government does less, and power remains at the local level.

It means power remains at the corporate level.

To be fair, the states are effectively countries that have joined a federation (similar to the EU). The power is supposed to be primarily at the local level, the federations primary goal is collective bargaining and protection.

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.

The entire point was to kick this to Congress, which they know can't pass anything, thus achieving their entire goal of allowing companies to pollute and do whatever they want to make an additional buck.

I see it more as a fundamental perspective that we need to give Congress a kick, which is might be excruciatingly ineffective right now, but we cannot continue with the expectation that our Federal legislature is too incompetent or disincentivized to do their jobs.

This tendency of people to attribute the worst possible motives to their political opponents is tiring.

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.

There is absolutely *zero* reason to rule that the EPA, which has existed since the 70's has no authority to regulate the environment. None.

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.

I've commented elsewhere on the reasons why the Supreme Court might rule the way they did. If you're sincerely curious, feel free to look at my other comments.

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.

If the authorization of the EPA was to "regulate the environment" then there is nothing they couldn't do.

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.

"We know Congress is too deadlocked to be effective."

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.

> We know Congress is too deadlocked to be effective.

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 court will reduce the Federal government to a non-entity very soon

> 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.

> All Congress needs to do is clarify that they’d like the EPA to regulate carbon emissions

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.

That's not it at all. All parties agreed that Congress passed a law allowing the EPA to regular carbon emissions by setting emission limits on different types of power plants based on the best current technology available for emission reduction. The disagreement is whether that allows the EPA to set emission limits which are impossible to achieve, with the goal of forcing fossil fuel plants to shut down or subsidize renewable sources.

I encourage all the tech people around here to "read the code": https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

> That may even be "constitutionally" correct... but it makes the US completely incapable of operating in the modern world.

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.

how exactly do you propose finding the political will necessary to amend it?

Let’s not. Why would we? This is a victory for the little guy.

EDIT: downvoting me isn’t going to save administrative courts and rule making.

The political will is fairly easy in terms of broad democratic support, but following the rules as they're currently set out, which gives small groups outsized power makes it hard.

I'm not sure confusing those two things is helpful though.

> let’s amend it!

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.

Alternatively, a simple majority in Congress could enact the regulations that were deemed not enforceable by the EPA alone. If a majority in Congress won't authorize it, should they be enacted? I guess it depends on your level of commitment to democracy as an ideal.

A majority in congress isn’t enough to pass regulatory laws. You need 60 votes unless you’ve got 50 willing to overturn the filibuster.

How is it culture wars when one side does not want to regulate pollution?

Defining CO2 as a pollutant is a problem for me.

The topic is not defining CO2 as a pollutant.

The topic is about controlling proportions of different molecules in the environment to maintain a preferable quality of life for citizens of the world.

Before CO2, you had pollutants like NOx, which were toxic pollutants, and CFCs, which were pollutants but not toxic. CFCs were considered pollutants because they damaged the Earth in a way that would have a negative impact on human health, but non-toxic because their harm was not directly effected on the human body. CO2 would be the kind of pollutant that CFCs are. (CFCs are toxic in high concentrations, but the mechanism of their harm when released into the environment is not toxicity.)

By what possible definition is CO2 not a pollutant?

Good. If we can’t agree, then we shouldn’t do it. We are a republic. Every state should have a say.

Then we can’t do anything. Personally I don’t think never doing anything is a path to success.

The last amendment to the constitution was in 1992, so amendments aren't impossible. The story behind the 27th amendment is pretty amusing. An undergrad student wrote a paper saying that the proposed amendment was still live and could be ratified even though it had been proposed in 1789 and not passed, but got a C grade on the paper since his TA disagreed. Annoyed by this, the student started a letter-writing campaign which eventually succeeded in getting the constitutional amendment passed. Years later, his grade was changed to an A to recognize that he had been right.

https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_th...

The political outlook has changed a lot since 92. Newt Gingrich was not yet speaker at that point, the republicans strategy of “never agree to anything democrats propose no matter what” was just getting started. I suspect passing that amendment would be much more difficult today.

Amendments to the constitution need adults in congress and the senate, not what we have today

>> let’s amend it!

> 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.

You seem to think this is a both side's issue. Putin has a few bridges to sell you.

Agreed. Wasn't that the original intention? That it would be a living document that changes and grows as time goes on?

Sadly, it seems near impossible to get consensus to change it now.

There's two mechanisms to keep the constitution alive, amendments and rulings.

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.

Why, then, has no previous SC viewed its role in this way?

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?

It largely had been up until 1984, when Chevron v NRDC was decided in a way that yielded a _deference_ that previously didn't exist in determining the scope of executive branch delegation authority via statutory interpretation - e.g., "Can the agency I've tasked with regulating John also regulate the Boy Scouts of America, of which John is a member?" and "If a regulatory agency can regulate John, can it determine for itself that it may also regulate John's best friend Janet just by reinterpreting the statute for itself without input by the executive or congressional branches?"

The intent of the EPA is to regulate things that negatively impact the environment. To use your analogies, the EPA can by the word of law regulate John, and by the intent of law should be able to regulate BSA and Janet if they are operating in ways that negatively impact the environment.

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.

That's not how it works. The IRS can tax profits earned from transactions in any medium of exchange (bitcoin or anything else) because Congress has specifically granted them that statutory authority. The EPA does not have blanket authority to regulate anything that might happen to negatively impact the environment. Congress could give them that authority, but has chosen not to do so.

> 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.

And what legally labeled a bitcoin as an asset? There's enough wiggle room that someone, somewhere had to make a call, and I doubt it was congress.

Because we are now at the point where we can just make shit up as we go along and anyone who can string together 3 words has a coherent argument for whatever they want.

Because it’s a way to fit their world view. Don’t expect consistency, this will be done per topic.

Have you read the decision? I haven't read the whole thing, but it consistently talks about what Congress intended to do. Here's a relevant extract, in which the EPA itself acknowledges that to the extent Congress expressed intent, it went against the EPA's rulemaking:

> 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.

Have you read the dissent? it has clear legal answers to the questions being asked, including how the supreme court is ruling against non-existent policy as a political statement. The EPA guidance quoted exists because the EPA decided to move in a different direction before ever applying the Clean Power Plan.

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?

It isn’t hobbling the federal government. It’s strengthening it by giving powers to Congress and the states where it belongs. It’s hobbling the executive branch to prevent them from ignoring the will of the people via Congress.

Highly personal opinion:

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.

The problem is that pollution easily becomes someone else's problem. If Wisconsin decides that Lake Michigan should be it's dumping ground, what recourse is there for Illinois, Indiana, or Michigan if there can be no federal oversight? Inter-state war is not really something I look forward to.

However, even if you read the Constitution and attempt to do apply what it "does say", you still need to interpret it, which is often ambiguous.

Yes, it's ambiguous and there are no good answers. Conservative justices say "unless the Constitution says it plainly, it's a no". Liberal justices say, "even if the Constitution doesn't say it plainly, they kinda imply it, so it's a yes".

I do find it amusing (-ly hypocritical) that the big exception to this conservative position is the role of the Supreme Court itself. The entire concept of "judicial review" which is being employed here to allow the justices to strike down laws which they feel are outside the constitution is, famously, not a thing explicitly described in the constitution. Rather it's the very height of "well, it kinda implies we can do that".

https://en.wikipedia.org/wiki/Marbury_v._Madison

That's one of those things that is technically true but sweeps a lot of the practicalities under the rug. The constitution was not designed to be changed, it was designed to be VERY DIFFICULT to change. That has important implications when the court suddenly changes or repeals numerous rulings about it all at once. It will take years or decades to adapt.

The very constitution that all but guarantees a 50.1/49.9 split in just about every election.

The role of the court is whatever the hell it pleases. It is the court which gets the final word on what they should be.

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.

They can be checked but that’s require an amendment which… yeah good luck. We can’t even get bipartisan bills through.

> No one can hold them accountable for blatantly contradicting themselves.

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.

> The role of the court is whatever the hell it pleases.

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.

The whole system was designed so wealthy landowners could maintain max power while keeping people complacent. It’s as evident as ever.

An attorney friend of mine summarized it by saying that the Supreme Court said it's OK for the EPA to dictate particular emission levels for power plants but not OK to require a plant to change it's method of power generation.

So CO2=0 would be legit? That seems against the spirit / motivation of the court at present moment. My third-hand impression was that they ruled that regulating CO2 at all was outside their responsibilities.

The deal is that Congress can delegate administrative authority to agencies like the EPA, but answers to "major questions" must be backed up by legislation. Where is the line? Wherever the Supreme Court decides it is.

Wow... if this is the actual impact, that seems... fair. Yeah, you can regulate pollution levels but not go a step further and regulate the inputs that create pollution, unless that power is vested in you by Congress.

For more information on the topic, you can look towards previous decisions creating the modern statutory interpretations (that have been pretty much declining in favor since their inception)

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....

[2] - https://en.wikipedia.org/wiki/Auer_v._Robbins

Yes. The US Fed Govt was never intended to have unlimited and arbitrary power, but POTUS candidates make big promises they don’t really have the power to deliver and try anyway. Right now it still has power very very close to that because even once a mook is elected and finds out he can’t really say, run the economy, he’ll still end up expanding the power of his branch of government falling short of the goal.

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.

Alternatively, there's always the opportunity to reappropriate Andrew Jackson for the modern era and say, "John Roberts made his decision, now let him enforce it."

Were the country so inclined.

Yes, the ironic thing is that it's not even clear from the US constitution that the court should have the sweeping powers it has, and it certainly hasn't always had them. But like the pope declaring that the pope is infallible, they have decided that they should. And since elected politicians have found it expedient to play along for a long time, now it's not easy for them to go back.

Lots of fear mongering here. The federal government has always been intended to have limited powers & courts have not always been pro-federal gov. That’s an unreasonable thing to posit.

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.

I'm just dumbfounded by the fact that the US Supreme Court has no term limits, age limits, or reasonable impeachment mechanism for justices that have unethical behaviour or outright lie on their job interview.

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.

Term limits are possible with a congressional vote; an impeachment process already exists, and the only time it was invoked against a Justice was 1804.

Don't mistake politicians' unwillingness to do something for an inability to do it.

It could have all of those things, however, by act of Congress and/or constitutional amendment.

>>That may even be "constitutionally" correct

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.

> it makes the US completely incapable of operating in the modern world.

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.

I think that we will adapt and Congress just needs to adjust to a hostile Supreme Court and legislate more. People need to vote.

Yeah, they're ahead of you on that one. Already zapped the Voting Rights Act and ruled that gerrymandering is legal. They're pretty competent at setting up the doom loop for Democracy - that and cutting taxes for the wealthy.

Adapt and overcome. I'm against panic and FUD.

You know, it occurs to me that pessimism is pretty inherently toxic, but not always wrong, but optimism can have the same quality.

I do what I can. I donate to principled and pragmatic political campaigns, I vote, and I encourage others to do the same. I've just heard too much doom and gloom that never turns out as bad in practice as I've been led to believe. c'est la vie. One must cultivate one's own garden.

I mean, I see the inflation now, I've lived through a climate disaster already (and quite the opposite of what I expected from global warming). I see the financial meltdown, the accelerating costs of living such that most people in my generation are actually poorer (and less healthy) than Boomers or Gen Xers. Also the president nearly had his vice president hanged by a crowd he whipped up. That last one might have had some entertainment value at least, but seems like it came pretty close to gloom and doom, no? Oh yeah, and the plague that apparently wasn't too bad because it only kills your grandparents and apparently they've had their time. And then the rich conservatives trot out their apparatchiks to tell you that actually you're just a sourpuss because your phone is too entertaining and your TV is too big and that's the most condescending part of it all I think. So yeah, not much of an optimist here I suppose.

You think that the court is principled? You think that will work?

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.

>If you thought China taking over Africa because the US govt was distracted by the Middle East (and isolationism) was bad

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?

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