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Comment by nitsky | Hacker News Reader

> 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.

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> 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.

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.

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

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.

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.

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.

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

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