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Comment by philosopher1234 | Hacker News Reader

Every surpreme court article makes me hate this community a bit more.

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.

View on HN

I support this ruling not because I think that the EPA shouldn't have the authority to cap emissions, but because I agree with the Court that Congress never intended to grant the EPA that authority. I believe strongly that the executive authorities--be that police, FBI, NSA, ICE, or EPA--should not have the ability to creatively interpret laws. If we allow them to do that, we open the door to innumerable abuses.

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.

> I believe strongly that the executive authorities--be that police, FBI, NSA, ICE, or EPA--should not have the ability to creatively interpret laws. If we allow them to do that, we open the door to innumerable abuses.

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.

Although I think that terrorists in general should be denied Geneva Conventions and protections, I do think there should have been a judicial process to determine, and make the case for said terrorist (Anwar al-Awlaki) being an enemy of the state, and an authorized target. Then, through an adversarial process, he would have had his day in court, along with all of the rights of appeal that come with a judicial decision.

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.

Why should the Supreme Court decide if a government agency has assumed power not granted to it by Congress? Congress still exists, and Congress can always pass a law kneecapping the agency in question.

The Supreme Court is supposed to be a check on the Executive and Legislative Branch? In modern times, the Executive Branch assumes much power not explicitly granted to it and it is the job of the Legislative and Judicial branches to keep it in check.

If congress, doesn't like the ruling, it can reverse it in legislation.

Because our system is, by default, not one of assuming the government is all powerful and we restrict it here and there, but one where we must proactively add a power.

Because that's literally in their job description:

> 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;

https://www.law.cornell.edu/constitution/articleiii

I find this argument very unconvincing.

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."

you find a political argument unconvincing so apply a software engineering analogy

I applied it by way of analogy.

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.

>They are not, for example, legalizing marijuana, on the grounds that the FDA should not have the authority to schedule drugs

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.

> 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"

That's what the people with the creative interpretations on the constitution did. This is restoring to a previous commit before that happened.

Would you restore to a decades old previous commit on a system that had been running just fine in production that entire time?

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.

"running just fine in production" is your assessment.

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).

Nothing prevents Congress from granting them those powers explicitly

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.

This is an argument against large central governments.

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.

I understand your perspective, but disagree.

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.

> Federal branch agencies need clear limits to their power.

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.

> Would you restore to a decades old previous commit on a system that had been running just fine in production that entire time?

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)?

We're not a software shop, we're a country that has deep, systemic problems with executive overreach and abuse. Analogizing to a company producing banal software trivializes the extent of the problems we're facing and abstracts away a lot of real concerns into fungible "features".

Maybe you played hooky in Civics 101, or maybe not, but your understanding and analogy both require substantial correction.

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.

Is that justification for suddenly breaking a system that was working

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.

> I agree with the Court that Congress never intended to grant the EPA that authority

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.

> Congress did grant the EPA that authority; the ruling is an objection to the principle that Congress can make broad grants of authority.

That's entirely incorrect, please read the article.

To be explicit, Congress granted the EPA the authority to set "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."

The majority believes that's too broad a grant and that usage of that authority needs a second authorization from Congress.

I wonder if the majority cares about climate change. My guess is they don't.

Congress: "No, we really, really mean it this time." What the actual fuck?

From the end of the ruling (emphasis added) [0]:

> 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

"Clear delegation" is the key phrase, there. The Court rejects the idea that Congress can create broad grants of authority and instead propounds the idea that it has to explicitly authorize every potential scenario.

They talk elsewhere about "clear delegation", and it doesn't have to do with the scope of the delegation, it has to do with its precision:

> 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?

Requiring Congress to precisely enumerating every possible use of authority indefinitely into the future is by definition limiting the scope of authority that Congress can delegate.

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).

You're still assuming that the Court says Congress needs to enumerate powers. I don't see that. I see the Court saying that Congress didn't explicitly grant broad powers. Do you have a citation that shows that the court is saying that Congress cannot grant broad powers?

You can read the particular text granting the authority here:

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 specific delegation is the power to set "standards of performance," which is explicitly defined: "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...."

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.

> The term "system of emissions reduction" means control technology like scrubbers.

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.

Sorry, that’s wrong. The word “system” is obviously broad, but the term “system of emissions reduction” is used within the statute to refer to emissions control technology.

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.

(cribbing an argument from the dissent)

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.

The Clean Air Act had a bunch of terms referring to different technological levels. “Reasonably Available Control Technology” applies in certain cases, “Best Available Control Technology,” a more stringent standard, applies in other cases. It’s fair to read the term “system of emissions reduction” in section 111 as being broader and more general than that and encompassing those specific things.

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?

You should read the whole law. It does limit their ability and has checks in balances of which they have over stepped. It is that simple.[0]

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...

Congress did explicitly grant that authority to the EPA: particularly it gave the EPA the authority to set "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."

Where, exactly, are you claiming that the EPA ran afoul of the law?

"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"

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.

The ruling doesn't claim the EPA didn't take into the cost of achieving the reduction in pollutants; it claims that Congress didn't appropriately delegate to the EPA the authority to implement systems to reduce the pollutants.

>The time when presidents could find unilateral "work-arounds" in existing law may be coming to an end."

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.

Just read the dissenting opinions. That you chose not to, clearly, is a choice you made to avoid confronting differing viewpoints.

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.

“something more than a merely plausible textual basis for the agency action is necessary”

I love it when textualists go anti-textualist.

If people are going to espouse an absolutist ideology, they should at least be consistent.

"Beyond merely plausible" is what they're looking for, not "beyond textual".

When the consequences of an executive agency's rulings are a) not clearly within their delegated powers, and b) sufficiently far-reaching that Congress should have authorized them more explicitly, then it makes sense to say that Congress must be more specific.

From Kagan's dissent:

> 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.

You are conflating "unclear" with "broad".

Congress gives the EPA the authority to set "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."

That's pretty clearly a broad delegation of regulatory authority.

No, the key phrase is "magnitude and consequences." The whole point of the "major questions doctrine" is that routine scenarios can be delegated, but authority to address a sweeping nationwide issue cannot be justified on the basis of a delegation to address a limited set of scenarios.

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.

The analogy here would be Congress granting the DOJ the authority to create drug diversion programs, a new drug hitting the scene that requires a response not explicitly called out in the initial legislation (e.g. distribution of naxolone), and the Supreme Court then declaring that response illegal because giving out naxolone just seems like too big a deal to be decided without involving Congress.

No it isn’t. The Clean Air Act is all about requiring polluters to use control technology, and requiring new sources to use better and more expensive control technology than existing sources. That’s the program Congress designed.

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.

Consider this. What would happen to the powers of future Congresses if SCOTUS had ruled the other way? Would any agency granted broad authority be able to override the wishes of a future Congress? What would happen to our form of representative government under this case?

Congress can only delegate authority that it actually has itself. Read the 10th amendment of the constitution and it’s clear that Congress doesn’t have nearly as much authority as most of us apparently assume they do.

> Congress did grant the EPA that authority

This is objectively false, the supreme court just ruled that. Like it or not, they are the sole authority on said issues / decisions.

If six justices on the Supreme Court call a tail a leg, how many legs does a dog have?

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.

Yes, the dog would still have four.

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.

> The Supreme Courts job is to determine if something was legal, they were granted the authority by the people

: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.

Congress has been totally broken for years, now the Supreme Court will be.

> The Supreme Courts job is to determine if something was legal, they were granted the authority by the people

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.

[1] https://en.wikipedia.org/wiki/Marbury_v._Madison

Well, the constitution grants the judiciary branch the final say on all cases of legality. So I don't think it's very controversial that they also have the final say on the legality of the legislative and executive branch's doings.

Also of course, this is exactly the separation of powers, which is completely fundamental in all western societies.

Obviously it's not controversial now because that's how things have been done for more than 200 years, but the Constitution is far from explicit that they have that power.

How do you read Article 3 Section 1 of the Constitution?

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. -.

That's certainly how SCOTUS interpreted it, and a 200 year tradition of interpreting it that has made it so that most people will now interpret it that way, but "The judicial Power of the United States, shall be vested in one supreme Court" hardly makes it clear that they get to decide the powers of the other two branches.

Devils advocate, if not the Supreme Court, then whom?

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?

Maybe they thought States would remain strong and step up to the plate?

There is the 9th and 10th amendment that do not seem to get much coverage in court rulings.

Can you elaborate on your point?

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.

My thought on the 9th would be that it would not limit our rights in any way and by that same thought not allow an all powerful state or federal government from encroaching on any right we may have not enumerated.

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.

This is parliamentary supremacy. The third leg would be people replacing the legislature.

That would put a check on those who write the laws, but it still leaves no check against the poor execution of those laws.

Sounds like a good system until the Federalist Society and a generation of Christian judicial activism showed up and gave us a handful of partisan judges.

I've asked elsewhere, but is there valid evidence (like statistical evidence within a reasonable level of uncertainty) that the courts are not apolitical? I wouldn't be surprised if that's the case, it's just that I've never seen it presented as anything other than anecdotal.

If so, what's the solution? Term-limits on judges? But then doesn't that ensure they will be even more politicized?

> Congress intended to grant the EPA broad authority to regulate pollution

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.

None of the parties or judges dispute that CO2 is a pollutant.

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;

> None of the parties or judges dispute that CO2 is a pollutant.

The fact that all of the parties and judges are calling a tail a leg, still doesn't make it a leg.

You should feel free to decide that a leg is actually a liver; that just makes you silly. As far as the matter at hand goes, though, it's the EPA that has the authority to make that designation (at least until the SCOTUS decides that only it has that authority).

> it's the EPA that has the authority to make that designation (at least until the SCOTUS decides that only it has that authority).

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.

Bit of a sleight of hand there: you were arguing first that this court case was about whether CO2 was a pollutant or not, and I simply pointed out that there was nobody arguing it wasn't and all agreed that the EPA had the authority to designate it as such, as opposed to your "pollution is whatever pdonis feels in his gut is pollution" standard.

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.

> Bit of a sleight of hand there

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.

> CO2 is not pollution. People and animals breathe it out.

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.

> '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.

Animals exhale many volatile organic compounds when they exhale, including methanol and acetone. Does that mean those compounds are by definition not pollution?

Are those compounds present because they come from the animal's metabolism, or just because they happened to be there in the environment and the animal inhaled or ingested them?

Metabolism.

https://en.m.wikipedia.org/wiki/Ketogenesis

My understanding is that ketones produced by this process normally get excreted in the urine, not by being exhaled.

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.

Huh? The Congress that created the EPA granted that authority, which is why the EPA has had the court's full support for decades. It took an extremely partisan SCOTUS to invent an excuse to say the opposite.

Call them partisan all you'd like, SCOTUS has the authority to make the determination of whether or not the EPA had such authority.

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?

Or until the Court is packed, or until someone shoots up members of the Court, or whatever.

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.

> You're arguing for simply the ability to execute the will to power being the determinant of whether something is right or not.

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.

> It said congress didn't authorize this, ask them.

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.

To prevent this exact situation from happening.

That is incorrect. Congress cannot broadly delegate authority to make rules with the force of law on the executive branch. Even liberals begrudgingly accept separation of powers.

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.

From the text of the Clean Air Act itself:

> (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.

> That is incorrect. Congress cannot broadly delegate authority to make rules with the force of law on the executive branch. Even liberals begrudgingly accept separation of powers.

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.

> 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?

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.

> To be fair, you can do this with judges on both sides of the partisan divide.

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.

> DEA, ATF, FDA, OSHA, CFPB, CDC, EPA, and FCC would all tend to disagree with this assessment.

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.

There's a thread circulating on twitter about the 24 worst decisions from this SCOTUS term, and, because I don't like Twitter threads, I took the time to skim all the decisions. So this stuff is fresh in my head.

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.

What about Roberts?

You’re right I shouldn’t have painted with such a sweeping brush. Kagan and RBG were plenty rigorous. But Breyer? All of his decisions read like hand waving to me. I agree Alito can be quite ideological, as the first draft of Dobbs showed. But Thomas is one of the clearest thinkers on the Court.

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.

Totally agree with this, the US has turned into an administrative state, which is far from the vision enacted by the founding fathers in which Congress and/or states regulate. Today congress has chosen to forsake their main role as legislators by creating unelected unaccountable bureaucrats with, essentially, unchecked law making abilities.

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.

>>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.

Then they would have to tackle financial regulation reform, and that isn't in the interests of anyone in Washington or Wall Street---and likely not within their wheelhouse of competence. The fed and various people throughout the financial industry and private citizens have been begging for specific regulations for decades now.

Except this is a complete straw man in the current political reality. Climate change legislation will never get a single Republican vote, and we all know it. And they will never be held accountable for that because the people that vote for them are either uninformed or misinformed about climate change, by the same forces that influence congress!

Legislating is an exercise in compromise. There are plenty of Republicans who would vote for certain elements of climate change legislation in exchange for getting other things they want.

>because I agree with the Court that Congress never intended to grant the EPA that authority.

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?

You're looking at it completely backwards. Congress was fine to let the EPA run around and do whatever, because that means people can bitch at the EPA instead of Congress.

> 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.

It is the court's job to ensure the law is enforced as written. Where ambiguity exists, it is the court's job to interpret the law. That's literally the entire purpose of a court.

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.

>It is the court's job to ensure the law is enforced as written.

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.

>police, FBI, NSA, ICE, or EPA--should not have the ability to creatively interpret laws

That's simply not possible unless we have literal laws for every possible infraction - like a state machine for the human condition.

I barely post but here here.

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

It strikes me as extremely naive to believe that this same precedent will be applied to agencies like the FBI and NSA. The supreme court is not an automaton bound by the laws of logic to act consistently.

The "creative" you speak of is a bullshit stance because congress isn't a computer, never will be, and all you're doing is not liking the outcome which is what the parent is explaining: rationalizing your bias after the fact.

Others would say they are implementing the details of broad brushed Congressional laws.

So you're hoping pedantry will save us from climate change. Hopefully you live long enough to see how this turns out.

I feel like people don't actually realize what the consequences of this will really be.

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.

It might not be a good idea, but google search will turn up the logic behind opposition to the power of the regulatory agencies.

Government agencies are comprised of people. The same people that work a desk job they hate. They're not elected, and don't have to demonstrate worth for the position, yet can execute sanctioned harm against individuals That's two major flaws that slaps democracy in the face.

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.

The leadership of all agencies is appointed, not hired.

Is it a republic democracy if you elect a king?

> The same people that work a desk job they hate. They're not elected, and don't have to demonstrate worth for the position, yet can execute sanctioned harm against individuals That's two major flaws that slaps democracy in the face.

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.

Rules are a suggestion, not a requirement. Nobody knows what they're doing, because they don't have to. There is no reward for accurate and efficient work.

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.

As an example, my understanding is that the federal government can regulate my ability to grow a plant and consume it in my own home based upon their argument that I'm participating in interstate commerce. The feds argued that growing a plan is participating in interstate commerce[1]. This law will stand while the court clutches their pearls about the environmental protection agency seeking to protect the environment.

[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

This one?

https://en.wikipedia.org/wiki/Wickard_v._Filburn?wprov=sfla1

Yes. Thank you.

> The feds argued that growing a plan is participating in interstate commerce. This law will stand

That's not guaranteed. Has it been challenged?

Wickard v Filburn has got to be one of the worst precedents ever. I sincerely hope the SC reverses it next.

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 court can't just overturn laws. Cases have to be brought to them first. So your argument of "why is X bad law allowed to stand when they just overturned Y?" doesn't hold water.

What do you think of this article? https://www.sfchronicle.com/opinion/openforum/article/The-Su...

"""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?

> 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.

Involve yourself in efforts to bring a challenging case. I’m not aware of a recent affirmation of Wickard.

I understand the idea of the SC kicking things back to congress and that would be well and good if we didn't have minority rule in this country coupled with the outsized power that land has over people. On top of that we have a disgusting high rep->citizen ratio because of a silly law congress passed capping it's size. Throw in gerrymandering and election boards rejecting results of elections (and things like Jan 6th) and it's clear democracy is dying.

How does land have power over people? States with more land don't have more representation than states with less land, but states with more people do have more representation than states with fewer people. As a concrete example, New Jersey has the same representation in the Senate and 12x the representation in the House as Alaska, despite only having 1% of the land of Alaska.

Maybe that was badly phrased but it refers to states having more power than they should (or less) due to how the electoral college and senators work.

It was designed that way on purpose.

Yes. To give the slave states power beyond their value.

The value of those states was not in question when they threatened succession; they were important enough to fight a war over. Nor would many of the states have joined the union in the first place if not for this system, so America wouldn't have existed in the first place if you had your way. The entire country is premised on this compromise.

The centuries-old political climate in which the electoral college was born has little if any bearing on its utility for the modern United States. I doubt the only thing keeping rural states in the union now is leverage against abolitionists.

It was designed to prevent tyranny of the majority.

This argument comes up often, but I've never understood how tyranny of the minority is any better.

The people who make that argument are usually benefactors of that tyranny.

It's because tyranny of the minority means prevention against new laws, not the enactment of them. It's the safer path, generally not absolutely. A bias towards inaction.

Tyranny of the minority only means prevention of laws the minority disagrees with. That minority hasn't, historically, taken issue with new laws that cater to them.

It's funny that you mention Alaska, because they are the #1 overall state when it comes to Senate and Electoral College "voter power". As you said, they get the same Senate representation despite having a fraction of the population of NJ. In addition, each vote cast in Alaska counts far more towards the presidential election than a vote in NJ does.

That's because the federal level is supposed to only deal with federal matters and be nonexistent elsewhere.

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.

> Each state has the same weight in the senate because they are all equal players in that space.

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 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.

I'm aware that powers not left to congress falls back to the states, you specifically mentioned regulation and this is in a thread about the EPA.

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?

A state isn't supposed to do any of that on it's own. Congress is supposed to pass laws regarding those sorts of things, not just create an agency in the Executive branch and let it run wild.

> Congress is supposed to pass laws regarding those sorts of things

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.

> 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?

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.

I have neither the faith nor hope that congress will act so from my perspective this is only a bad thing no matter how much "It's the right ruling given the law/constitution", it along with other recent decisions.

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.

They don't, which is why it's s federal matter. But I'm stating that each state has an equal say in the decision (in the Senate) precisely because it impacts states approximatepy equally (hence the federal matter). If it didn't, you could plausibly see a densely populated state vote to pollute their neighbor's state by tyranny of the majority.

> But I'm stating that each state has an equal say in the decision (in the Senate) precisely because it impacts states approximatepy equally

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.

The senate is representative of the states. The house is representative of the people.

I reject the idea that states deserve representation outsized to their population, I'm well aware that's not the current state of affairs but I find it anti-democratic.

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).

This is mainly because Congress will not increase the size of the House of Representatives. If we were to give Wyoming a single representative and used that as the bar for how many citizens a representative should actually represent then California would have 82 members in the House instead of 53. California would be worth 84 points in the Electoral College while Wyoming would still only be worth 3.

This is confusing. You claim that we have "minority rule" when certain things have to be done through Congress ... but by implication you prefer these decisions be made by SCOTUS (an unelected "minority" if there ever was one)?

I never said relying on SCOTUS was a good idea but neither is tearing down precedent and kicking it back to an organization which will not or can not act.

So we should just ignore the Constitution because our elected representatives, who we can actually kick out of office, don't want to do their jobs?

Not who you are replying to, but my personal take is that we are deciding between Congress and career government employees making these regulations, not Congress and SCOTUS.

> it's clear democracy is dying.

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.

Regardless, you can't ignore the far reaching affects of Trump as president and January 6th. Was it just a "phase"? Perhaps. But any scenario I can think of leads to more of this boneheaded nonsense. You can't simply say 'bah people disagreeing is not the end of democracy' and be done with it. The statistics are there; the US is far more polarized and contentious than it ever was before.

This country has stumbled through boneheaded nonsense after boneheaded nonsense ever since it was founded. What is going on now is not even remotely the worst it has ever been, and I don't think you can rationally plot any trajectory from the present to "death of democracy" unless you are discounting any datapoint more than a few years old.

> 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.

We are one supreme court decision away (via the independent legislature doctrine) wherein a state legislature could overrule its own laws or constitution and federal law and flip election outcomes as they desire, both statewide and federally.

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.

I'm assuming you're talking about this one [1]. It's actually an interesting and important question that could use revisiting.

>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...

I don't think a question where one possible answer is "legislatures can unilaterally decide the results of their own elections" is one that needs revisiting and its astounding that anyone could sincerely believe that that is what the framers intended

That's not what's at issue? How are you getting there. It's about who gets to decide the rules, legislatures or the court. Dunno about you, but that seems like a good question to get settled.

The legislature already decides the rules through the traditional legislative process. If the legislature alone decides the rules without judicial or executive checks it can engineer whatever result it wants. We don't let congress do whatever it wants just because the federal constitution has "vague principles" that courts try to hold them to, it shouldn't be any different for states and state elections.

Democrats need to shake this notion that Republicans represent "minority rule" because it both delegitimizes our institutions and goads Democrats into overplaying their hand. Republicans won almost 1.5 million more total votes in 2016 for the House, the country's primary law-making body: https://en.wikipedia.org/wiki/2016_United_States_House_of_Re.... They are on pace to win the House again in 2022 by millions of votes, like they did in 2010: https://projects.fivethirtyeight.com/polls/generic-ballot.

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.")

And the Senate?

You seem to try to imply that they are not important to legislation, which is just silly.

The Senate represents the individual states, not the people. The fact that relatively small states like Delaware have as much representation in the Senate as large populous states like New York is by design, and was a critical for the creation of the Union in the first place.

> The fact that relatively small states like Delaware have as much representation in the Senate as large populous states like New York is by design, and was a critical for the creation of the Union in the first place.

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).

And I'm sure no one is disenfranchised by feeling their vote doesn't "count" or matter due to gerrymandering. /s

> 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)

I'm not sure why people bring up the popular vote as if it means something. The popular vote was never intended to decide presidential elections.

> I'm not sure why people bring up the popular vote as if it means something.

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.

> 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.

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.

In order to make the case that votes are being "stolen", you first need to make the case that popular vote is better or more just. This is a contentious point, and I think it does a lot of disservice to any real discussion to assume it.

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.

Democrats have been gerrymandering for decades [0] [1] [2]. It's only when Republicans started doing the same did it suddenly become an issue of great ethical concern to many Democrats. I recall with vivid clarity the now disgraced ex-con [3] and former Speaker of the N.C House, Jim Black declared that he didn't see anything wrong with injecting politics into drawing districts. Don't fall for their phony outrage and moralizing.

[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...

[3] https://en.wikipedia.org/wiki/James_B._Black

> And I'm sure no one is disenfranchised by feeling their vote doesn't "count" or matter due to gerrymandering.

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.

> Republicans won almost 1.5 million more total votes in 2016 for the House, the country's primary law-making body

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...

If Republicans match their 2010 performance, which seems very possible, they’ll win the House in 2022 by 6 million+ votes. Do they get to declare everything the Biden administration did “minority rule” when that happens?

For EPA. Court took power away from unelected bureaucrats and gave it back to elected officials.

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.

This is exactly the type of comment I’m talking about.

> 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.

Given that largely only happens in liberal states, yet liberal states are the ones most against this ruling, it makes you question the motives of those concerned.

> For EPA. Court took power away from unelected bureaucrats and gave it back to elected officials.

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.

> it's clear democracy is dying.

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.

Yeah but how do I get people in other communities to live how I would prefer them to?

Hopefully you meant that as funny...because it is!

> Your local governments still have WAY more power over your life than the federal 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.

I keep seeing this “if you disagree with me you must believe something really bad and I’m going to put those words into your mouth” rhetorical device around. Does it have a name? It’s tedious.

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?

> 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.

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 just find it sad, because even Reddit got this one right. This is the most SCOTUS bootlicking ive seen in one thread and it's all done by programmers who are supposed to be my people y'know? Feels personal

Being a programmer only implies one thing. That the person is a programmer. It has 0 correlation with other skills or thoughts. I used to be disappointed by this too, but people are multifaceted and being able to make a computer do something useful isn't correlated with being able to understand politics, be good at playing an instrument, etc. The people who are good at multiple things (or knowledgeable about multiple topics) are that way because they put in the work, just like they did for programming.

thank you <3

It's, unfortunately, correlated with people who think they are polymath geniuses because they know C or a Lisp.

There are conservative programmers. We just learn to keep our heads down.

I spent a few years researching all viewpoints to figure out my position. Didn't realize I would be hated for thinking for myself.

Conservatives spend a lot more time and do a lot more research, yet are vilified for coming to a conclusion on our own. There's no major media informing us, nor are there any pundits to who we can turn to.

> This is the most SCOTUS bootlicking ive seen in one thread and it's all done by programmers who are supposed to be my people y'know? Feels personal

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.

Why would you assume that the fact that someone is a programmer indicates to you anything at all about literally any other aspect of their life or views?

It seems to me that you just built up your own little fantasy world, and are shocked that reality doesn't align with it.

They're not talking about programmers, they're talking about a lot of everyday people who you would expect to respect you as a person, but would in actuality prefer for you to suffer and die.

That's the reality a lot of people face, and the people who don't face that are completely oblivious to it.

That's odd that you think programmers all think the same things or are all politically aligned, or really any group of people for that matter.

I feel like on paper, they're people with a similar interests, most went to college, etc.

You're definitely right that I shouldn't have assumed but it still hurts

Kudos for your response, sir.

>they're people with a similar interests, most went to college, etc.

So...like hedge fund operators?

idk, I expect hedge fund people to be awful

~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 hasn't completely prevented the EPA from making these regulations in the future - but says that Congress would have to clearly say it authorises this power.

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.

If you take an overly simplistic view of things then yes every ruling is partisan everywhere. This by itself is not a meaningful insight because all forms of government will be corrupt. 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. I believe if we set aside climate change, for most reasonable people it’s not hard to see that the executive branch took action that the legislative branch never gave them, (and likely did so because they knew such laws could not pass Congress).

>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

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.

The burden of proof on such a sweeping statement is clearly on you…

How do you prove whats in anothers heart? Its not provable.

But if you dont try and figure it out, you can't understand the world.

If you don't think its true, why not?

> Besides, its a terrible idea. The real effects of their rulings matter much more than the philosophy.

If that's your view, then we should just abolish courts. What's the point of having unelected legislators?

Your counter argument is that this implies uncomfortable things about our social structure?

WRT so-called "textualism" and "originalism", I fully agree.

>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

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.

The legislative branch did give these agencies permission to take the actions they have, when those agencies were founded. The fact that SCOTUS disagrees doesn't make them right.

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.

> 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.

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.

> If you take an overly simplistic view of things then yes every ruling is partisan everywhere

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.

I dont think that is obvious at all, given the broad oversight over emissions given to the EPA.

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

Both parties engage in gerrymandering whenever they get the chance.

Uhh, yeah, but this is the Supreme Court who, if you look at the rest of this thread, people are claiming is "non partisan"

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

Dems attempted to stop gerrymandering entirely by creating an independent districting body with the bill HR1, but were blocked from doing so.

> 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.

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."

Despite my being very far to the “left” of the Biden Admin on environmental preservation, Kagan’s quoted dissent actually convinced me this was a sound legal ruling - even if I’m personally unhappy about the issue at hand.

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.

As Justice Kagan's dissent spells out, the Roberts Court majority abandoned its "textualist" principles, and invented this decision's "major questions doctrine" to reach the desired outcome.

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.

As a lawyer, I agree with you whole heartedly. Just because a legal decision recites a sound legal argument doesn't mean that that's the only sound legal argument they could have made. In the same way that a competent lawyer can make the best arguments for either side of a case, a judge could write multiple opinions for the same case that have different outcomes. And all could be just as legitimate from a logic and legal standpoint. But the judge chooses what opinion to write and what outcome they want. All of this makes the study of law kind of silly, because you study a bunch of case law and pretend that there's consistency or logic that ties them together, but really it's largely driven by the individual personalities more than some platonic ideal of what the law should be. It's a liberal art, not a science.

What the court is engaged in is an extreme case of motivated reasoning, sinking almost to the level of what the legal profession calls parallel construction. In fact there were many logically consistent arguments for this decision, and many logically consistent arguments for the dissent. They're all right there, both sides, in the text. It's why dissents are written and preserved. Often a point raised in a dissent for one case becomes more important than the ruling itself. Anyone who gets too carried away with the logical consistency of the majority opinion is ignoring the record. Which brings us to the terms I introduced earlier.

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.

Thank you for saying this, i completly agree.

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

Intelligent people can disagree on abortion, gay marriage, gun control, and other issues. People on both sides of these issues can understand them but reach different conclusions based on their values.

Societal concerns cannot be deterministically determined via deductive logic. So, people who hide behind "this sounds logical to me", whether intentionally or not, just happen to agree with the specific logic used in that instance. When presented with other so-called logic, suddenly it's illogical.

> just happen to agree with the specific logic used in that instance

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.

HN is by and large reactionary.

I don't know why you're being downvoted, this is correct. Just offering my support and the knowledge that not all programmers are assholes with more money than sense and a smug superiority that comes from assuming the whole world is an algorithm. Just most of them.

I generally try to avoid HN discussions about politics, geopolitics or anything related to human society, because there are some ass-backwards, heartless, libertarian people here who don't care about how outcomes affect people as long as it happens to fit with their ideology. Seeing the responses here makes me feel justified.

The only reason why I come back is because the technical discussions are incredibly good.

The thing about libertarianism is it has done more good for more people than any other ideology.

Note that libertarianism leaves people free to care for others as much as they want to.

i was having a nice time griping until you showed up. Given how libertarians seem completely unconcerned with raising wages or protecting the environment it seems that amount is 0

I am a libertarian, and if you're familiar with my postings, I have made many environment protecting proposals that would be much more effective than the current ones. Also for improving other facets of our lives, like wages.

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.

[citation needed]

The United States. The first free market country, and the first to raise the standard of living of scores of millions of people out of poverty into the middle and even wealthy classes.

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 people walking to America are doing it because they are coming from extremely violent countries where they are in immediate danger. My family came from Romania, a place where they jailed or beat my family members on a regular basis during communism, then had horrible brain drain and 0 opportunities post communism. People aren't emigrating from countries like Germany the way they are from El Salvador. Being better than a place where your life is in immediate danger or where there is ZERO economic opportunity is not much of an accomplishment. Please use correct comparisons when you are making statements like this.

"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?

The oceans are a major barrier to people walking here from other countries. Consider as well all the countries they walk through to get here. They come from Cuba, too, the socialist paradise.

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.

C'man, the socialist paradise is Nordic countries, not Cuba.

Yes, they come from Cuba because the US is the closest countries with opportunities, just like many people flee to Italy from the north of Africa or from the middle east. Also cuba is a bad example because of the https://en.wikipedia.org/wiki/Cuban_Adjustment_Act and https://en.wikipedia.org/wiki/Wet_feet,_dry_feet_policy. They are incentivezed to leave the totalitarian regime of Cuba (which is not socialist to be clear) to the US. The goal of bringing up Romania and El Salvador was to show how the bad conditions at the time forced people to leave. People don't leave countries that are doing well.

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!).

The Romanians I know arrived here with nothing and now are well off.

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.

> The thing about libertarianism is it has done more good for more people than any other ideology.

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.

Libertarianism as in free markets and the inalienable rights to life, liberty and the pursuit of happiness. It includes the rights enumerated in the Bill of Rights.

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.

No it’s not.

What's reactionary about applying checks and balances?

Being reactionary is a good thing as it preserves the status quo.

If that's your argument, then surely the proper approach is to criticize the Court for those instances where their logic isn't consistent, instead of when the logic is consistent. For example, Thomas vigorously dissented in Gonzales v. Raich, where Scalia voted to uphold federal marijuana restrictions as a proper exercise of the Commerce power.

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 interesting that you are bringing the conversation back to consistency when I explicitly said my POV is that consistency (here) is a red herring.

How can consistency possibly be a "red herring" when talking about judicial decisions?

Suppose I’m a pro lifer for reasons I’m ashamed of. The supreme court strikes down roe v wade, and I’m secretly pleased, but can’t admit it. Wouldn’t it be nice to defend the decision by arguing about its consistency?

It’s a red herring in these discussions because it’s not the true reason people support it.

I can't parse what this means. Is the idea that we are to assume malice of intent to the reasons the Court does things, and that "consistency" is not a legitimate reason to argue about it? How do you know what the "true" reason is?

You don't know anyone's true reason for anything. Your specific example of abortion is a ridiculously complex topic (hence the total disagreement in society), so simplifying it to basically "the other side is secretly lying" seems unfair and uncharitable.

So I’m a card carrying Fed Soc member. While I’m uncomfortable with legalized second trimester abortion (because at that point the fetus looks like a baby) I don’t think abortion should be banned altogether. But I still think Roe was wrongly decided and properly overturned. I’d estimate that half or more of Fed Soc supports some degree of legalized abortion, but virtually all think Roe was wrongly decided. The idea that it’s all pretext is laughable.

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.

I think the argument is that there are multiple judicial philosophies that can be chosen from, and you can generally predict what outcomes will result from following a philosophy consistently over time, so a justice chooses the philosophy that results in the outcomes they want. And therefore they could have chosen their philosophy for partisan outcome-based reasons, so consistently following it is no defense to accusations of partisanship.

"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."

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 tyring to do everything through naked force and pursue market solutions that people adopt because it's economically advantageous for them to do so?

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.

Are you talking about capitalist or free market minarchy?

I am not talking about any particular political framework at all.

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.

> Every surpreme court article makes me hate this community a bit more.

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.

I think you give HN too much credit.

Not every topic evokes pedantry. HN has specific interests, and brings out nitpicking to advance specific causes.

> People started a huge fight over whether the word "they" can refer to a single individual the other week.

Link please?

Singular they goes back far enough in English that you can find it spelled with thorn, but of course people here know better.

One can read a ruling and see how many hoops the justices jumped through to get to a particular decision.

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.

Yes I agree, I think its a universal human quality.

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.

This community isn't what I thought it was, either. I'm new to commenting, and my account has negative karma because I said something true that the 2A people didn't like.

Welcome. People aren't likely to lay their cards on the table, but this is a political place like anywhere else.

Commenting on politics anywhere is like playing with pigs. You're going to get dirty.

I agree and its frustrating to see this crowd continually push the point that congress needs to grant explicit powers to the EPA when they already know that every single Republican politician is against moving the needle on climate change. This case was filed by 19 Republican lead states which constitute 44% of emissions in the US and is a multiyear effort by conservative climate change deniers[1] Any significant law will simply not pass the senate because the only thing senate Republicans are apparently good at is blocking progress. So this double play on the part of right leaning commentators is really in bad faith.

[1] https://www.nytimes.com/2022/06/19/climate/supreme-court-cli...

Couldn't Congress roll out a clarification of this rule quickly? They own the big three right now, so it would be pretty easy if they kept any fluff out of the legislation.

I would like to introduce you to Senator Joe Manchin. No substantive climate change legislation is going to pass the Senate. Stop pretending like it's possible.

Correct. Also, Democrats could have passed an abortion bill in 2008-2010 when they had a super majority in the senate, but choose not to.

This has to be seen as part of a broader program against the administrative state, although here it takes the contours of the climate debate.

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.

I, for one, wish the EPA (or some body) were empowered to do more than it does, but I also (to some degree) respect the logic of many conservative judicial opinions. Just sayin.

There's a lot on this site that makes me question "what happened"?

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.

A counterexample to the idea that the Court is just trying to implement a right-wing agenda is just ruled 5-4 in BIDEN ET AL. v. TEXAS ET AL. that Biden could discontinue Trump's "remain in Mexico" immigration policy. Chief Justice John Roberts, writing for the majority, was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh. https://s.wsj.net/public/resources/documents/Biden-v-Texas-0...

It is well known that there are competing, consistent theories on how to interpret the Constitution.

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.

Hah, I am tempted to assent to your first sentence, but it’s because of people who share your misunderstandings. :(

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.

I don't think the name of the game is at the level of upholding consistent logic in and of itself but of defending the separation of powers granted to the three branches of government. You can think of it as analogous to programming architectural defensive tests enforcing the boundaries. This is at the level of governance design and protecting that design.

Over the past few years I've noticed that HN has swung very far to the right. Any politically-adjacent topic tends to feature more than a few upvoted right-wing grievance posts. I still like HN for the articles but it's honestly insufferable to read the comments.

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.

The average HN Bozo? lol. America is turning into Weimar. People here are good at pattern recognition and logic. We recognise whats going on and switch to the right. Go figure.

Lol

>Their logic can be consistent and they can still be partisans, looking to implement a specific agenda.

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.

I never claimed either of those things. I am biased too. We are all biased. We should be discussing openly our opinions of these outcomes, not wasting time hiding behind procedural arguments.

"A decision of such magnitude and consequence rests with Congress itself..."

Simple. End of story. If the Supreme Court has one job it's punting shit to Congress--the appropriate branch.

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