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Comment by lolinder | Hacker News Reader

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.

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> 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.

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.

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.

> 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 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

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

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.

>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.

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.

>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.

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