Headlines about Supreme Court cases are almost uniformly misleading, because they suggest the Court is making decisions on policy issues rather than legal issues.
The Clean Air Act does not purport to give the EPA blanket regulatory authority over anything involving emissions into the air. It has detailed provisions focused on reducing the amount of toxic pollutants, in particular through the use of control (scrubbing) technologies. This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.). The Court decided that the statute did not confer on the EPA the power to do that. The relevant discussion begins on page 16.
This decision gives legs to something that has been called the "major questions doctrine." The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem. As applied here, that means that the EPA can't rely on authority delegated by Congress to, for example, tell coal plants what kind of scrubbers they have to use, to tackle climate change. pp. 17-19.
> Headlines about Supreme Court cases are almost uniformly misleading, because they suggest the Court is making decisions on policy issues rather than legal issues.
This is the naive version of how SCOTUS works that they teach us in elementary school.
History has shown that the Supreme Court is a political body with its own political agenda. The doctrine and precedent cited is used as a justification for whatever policy they actually want to enact.
Yes, there are some guidelines and guardrails, but this is a case of the tail wagging the dog. They choose their interpretation of law based on the actual impact they want to have on society.
The majority of justices on the current Supreme Court have been doing a good job of sticking to the law rather than attempting to enact policy. What you’re describing is a good criticism of the mid-20th century Supreme Court, but the current Court has done a good job of rolling back those excesses.
I strongly disagree.
I see this current court having extremely low legitimacy engaged in naked power grabs:
In one session they’ve removed the ability to sue over Miranda rights, stricken down a fifty year precedent and told a state that they can’t enact their own concealed carry act.
I don’t doubt that you will claim that these actions are the logical course of originalism in its purest form, but I find it judicial activism of an obtuse society-wrecking despicable sort.
They shall go down in our childrens history as villains.
Per the topic of this particular judgment, they agreed to hear a challenge to a non-law!
The Obama era Clean Power Act is not law!
This court went out of their way to steal authority thst congress specifically placed in the EPA and based their judgement of overreach on a non-law proposed bill from over a decade ago.
I allege that they are corruptly serving the Federalist Society agenda and deliberately dismantling environmental regulatory bodies for clear goals the Federalist Society maintains
And yet, in two of the examples given - the one under discussion, and the NY state concealed carry law - they took away authority from congress and a state respectively.
I would greatly disagree that it is up to the voters. It is only up to the representatives. Only states with binding resolution allows for voters to enact policies while major of states only allow representatives. There are numerous stances where the people fully support a policy while the major of representatives reject the policy and adhere to their political party and group think. If the voters had the power then we should be able to override legislation that the the current representatives supporting. I hear it all the time with representatives, we need the power to override the Governor, but never hear the people need the power to override the representatives and or Governor. Voting in new representatives has no correlation to enacting polices we the people want and demand.
United States of America is currently legislatively oppressed.
Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
But, conservative justices clearly had a bone to pick there, despite obvious conflict with the words of the constitution. For some reason.
There's a long and storied history of things being in conflict with the constitution and justices simply not caring. Slavery and Dred Scott come to mind, and although I'm sure there's plenty examples peppered in from other parts of the grand political spectrum, it's never been a well kept secret that the conservative M.O. is noticeably bolder and shameless in almost all regards, its major strength actually being in its willingness to use every tool at its disposal with minimal concern for blowback or legitimacy.
The recent state law strike down coming across as highly ironic (but probably not to conservatives since it achieves the actual goal not of ethics or consistency, but of simple victory) because so much of what conservatives got away with for decades directly defying the constitutional rights was based heavily on the concept of state's rights. Like informal slavery/servitude after the war, or keeping your elections nice and extremely predictable until that awful civil rights movement.
"Textbook" has nothing to do with this, or any of the wild departure of rulings being made in recent times. It's all very, VERY simple strategy: use what you have; dismantle what you can; build defenses where you can; you're in this for the Party.
It's interesting you say these things because it's exactly how the right views the left, and it's exactly what they say about them! Just an observation, and an interesting one.
> Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
This is not at all true. Yes, there are lots of Christians that don't support abortion. Yet, there are many Jews that do and specifically cite their religion.
While religion may influence worldview, the fundamental abortion question comes down to the fact that the Constitution does not define when a person becomes a Person. I think the recent legal ruling was proper because of the specific omission of abortion in the enumeration of federal powers.
This EPA decision, however, I think is wrong, because the major question doctrine cannot be consistently applied and is constitutionally baseless so far as I can tell.
Edit: forgot to write:
> There's a long and storied history of things being in conflict with the constitution and justices simply not caring.
I imagine everyone thinks this about some things. I agree with your assessments of bad precedents above, but conservatives aren't the only ones that do this. FDR threatened to pack the court to get his way with the New Deal and the Wager Act, which included things I believe are unconstitutional such as Social Security, Minimum Wage, Medicare, etc.
>It's interesting you say these things because it's exactly how the right views the left, and it's exactly what they say about them! Just an observation, and an interesting one.
This is not an interesting observation but a disingenuously naive hot take straight from right wing reactionaries that conveniently or ignorantly ignores reality and the history of radical theological propaganda that’s being crafted by conservative think tanks and disseminated by their media orgs in a campaign to manufacture consent and shift public opinion. This particular tactic is called projection.
>>projection:
>>Psychological projection is the process of misinterpreting what is "inside" as coming from "outside". It forms the basis of empathy by the projection of personal experiences to understand someone else's subjective world.
>I think the recent legal ruling was proper because of the specific omission of abortion in the enumeration of federal powers.
Then abortion is plainly protected by the ninth, tenth, thirteenth and fourteenth amendments. One must use their ideological or theological beliefs as renegade dogma in order to reject the protection afforded by these amendments.
You cannot realistically expect 21st century America to agree with you.
If the constitution DID oppose a minimum wage, and it doesn’t, I would say ditch the constitution. Common sense.
Thing is, all this legalese mumbo-jumbo is a racket and a scam. The constitution is written in plain English in a rather common vernacular.
So-called “conservatives” have hijacked a silly notion of knowing the original intentions of the founding fathers and delivering an unbiased truthful channeling of that into a winning strategy.
To the rest of us it’s rather obviously a scam.
>So-called “conservatives” have hijacked a silly notion of knowing the original intentions of the founding fathers and delivering an unbiased truthful channeling of that into a winning strategy. To the rest of us it’s rather obviously a scam.
These same justices will toss contradictory evidence whenever it is at odds with their goals.
> Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
I'm not sure why you would say that. The late Justice Ginsberg was a frequent critic of Roe as case law (despite being an ardent advocate of abortion) and thought the fundamental reasoning used in Roe was defective. [0] Roe was roundly criticized from jurists from both the left and the right on a number of fronts. It was bad law that ruled broadly on a highly divisive topic. Some folks strongly agreed with the outcome, so it became a third rail. Overturning precedents like Roe, while controversial, is healthy and gives us the opportunity to replace it with something on more firm legal footing.
> I strongly disagree. I see this current court having extremely low legitimacy engaged in naked power grabs
Your disagreement doesn't have any effect on reality.
Care to back up your claims with actual evidence?
> stricken down a fifty year precedent
Is it somehow bad to strike down old precedents, regardless of content?
> told a state that they can’t enact their own concealed carry act
Is it somehow bad to tell US states that they can't do things that would violate the US constitution, which is explicitly meant to apply to all states?
> obtuse society-wrecking
Translation: "these rulings don't agree with my political positions" (so I'm going to use language that conceals my preference to suggest that they're bad).
> They shall go down in our childrens history as villains.
Not a constructive addition to the conversation, smells of emotional manipulation.
So flip the entire thing and say Congress and the presidency were hyper-progressive. Do you not think this court would use the constitution to strike down their laws (say universal healthcare or something)? They are only rolling back these excesses because it fits their ideology.
> Do you not think this court would use the constitution to strike down their laws (say universal healthcare or something)?
They upheld Obamacare again just last year.
> They are only rolling back these excesses because it fits their ideology.
This is just liberal projection. Liberal justices almost always vote as a unified bloc on major cases based on the results. It's always the conservative justices that go wobbly: Thomas voting against federal marijuana prohibition, Roberts repeatedly voting to uphold Obamacare, Roberts opposing overtrning Roe, Kennedy finding that the Constitution protects same-sex marriage, Gorsuch and Kavanaugh finding that the Civil Rights Act protects sexual orientation, etc.
I would not be surprised if the current right leaning super majority guts Obama care too (if a case comes along.) Thomas has already indicated he supports rolling back gay marriage etc.
>Thomas has already indicated he supports rolling back gay marriage etc.
That is not exactly accurate. What Justice Thomas wrote was that cases setting precedence in the area of due process may need to be reconsidered due to the same shaky legal underpinning that Roe v. Wade sat on.
It is the result of that revaluation that could impact Obergefel. Certainly, he could very well hold a negative opinion personally about gay marriage, but his suggestion could create issues for his own marriage legality as well. I am sure he is intelligent enough to realize this—which begs the question why would he suggest it if it could negatively impact him?
I suspect that the answer may be that perhaps he feels it’s important to correct a legal error, so that subsequent judgements are stronger. He likely feels that congress should be creating the laws, as opposed to us relying on legal fiats. I know I agree with that. Congress has a duty to us set forth in Article 1…it’s time they started taking that seriously. If they did their jobs and wrote good laws, what we have seen in the last week is less likely to occur.
While I understand your point, the issue is most progressive issues aren't easily traced back to clear laws or the Constitution. These very frequently depend on loose interpretations or extrapolations such as "general welfare", etc.
It would be better if these were clearly codified in laws vs being on shaky ground forever. E.g Roe v Wade
They have been hyper-progressive, and hyper-regressive. As RBG noted - the USSC got out "in front of" the law with Roe V. Wade - which resulted in it invalidating every state law (pro or anti-abortion) and caused a era of dramatically increased polarization.
They also wrote Dredd Scott, Ferguson, Citizens United, and Korematsu.
At what point do you constrain the power of the supreme court to make law as opposed to interpret it?
The Supreme Court has done far more damage then help, historically.
Saying that Roe v Wade resulted in an era of increased polarization is completely sidelining the facts that
A) women we're suffering from the lack of the right at the time.
B) that churches and GOP actually drove the polarization, they chose to use it as a device to divide.
It would be like saying abolition of slavery was too soon because it caused the civil war... Who cares the law shouldn't have to wait for cave men to move forward.
Funny enough - all of the actions that the Supreme Court took to entrench and strengthen slavery arguably were one of the things that caused the Civil War.
a) no. States were in the process of legalizing it - with restrictions far more in line with the rest of the democratic world.
b) no. In fact, most churches (the SBC for example) polarized _after_ roe v. wade. In fact, most evangelicals were left-leaning prior to this ruling. (Some partisan hacks will insist that it was desegregation that led to this, but Brown versus Board was 1954, and the SBC was still solidly liberal in 1972). Roe v. Wade lit everything on fire. (See RBG's comments on Roe V. Wade), precisely because it was a un-elected court making a change that no law could challenge.
It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
My hope on all of this is that this ends the imperial court - and abortion stops being the mother of all wedge issues, and allows some elements that moved to the right because of the undemocratic change to move back to the left now that the democratic norms are re-established.
> It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
There are of course two followup questions here:
1. Would the current supreme court allow a federal abortion law that codifies roe? The SC opinion explicitly notes that their ruling returns this to the states, but federal representatives are representatives too.
2. Does it really make sense for rights to be up to the whims of the legislature? If it takes 60 votes to pass a national abortion legalization, and 50 senate votes to repeal it, will we end up with lasting legislation, or just a de-facto ban because abortion is repealed every 2-4 years?
Regarding #2, the congress legislatively and the constitutional amendment process is truly the only place that makes sense to establish federal abortion rights. Frankly the amendment process is literally the best place because it’s the only way to establish enumerated rights.
Will it be hard? Extremely. Is it likely to fail before it’s done? Absolutely. But when it’s finally done, at whatever compromise, those rights will be enumerated and well established and it will take millions of people to take them away…instead of six people.
In the meantime we have states democratically choose their path.
1. Yes, they say as much in the opinion. (Take it for what it's worth). I think conservatives have not factored this into their plan.
2. I think at some point people will punish parties for that. Right now both parties could take absolutionist positions on abortion (late term versus outlawing for all reasons) because they didn't have the power to do anything because the USSC ruled on the issue. That made it a red meat promise to their supporters, without them ever having to really do anything about it..
Scalia described how to handle these cases very clearly. If the court overreached but there is broad consensus on the issue, it’s water under the bridge. If the issue is still controversial, it’s fair game. Nobody thinks we should revisit interracial marriage, and so under this interpretation it won’t be revisited.
The people in that video still exist in the county. They just have been overrun by professionals moving in as builders took advantage of abundant land and built houses over the last ten years.
It’s just not as acceptable to espouse those views in modern society. I’m sure some of the family members of the White girls my (step)son dates (the county is still only 3.8% Black) would not approve of their relative dating my son. Don’t get me wrong, by “relatives”, I mean grandparents, older relatives, etc. I’ve never sensed any hostility from parents. But that could be because they think we “are one of the good ones”
Which is of course odd since it flies directly in the face of Scalia's "originalism", and lays bare that the constitution is a living document. It also means that by the very act of objecting to the ruling, I am creating precedent to repeal, since I am "creating controversy".
The one that returns the decision to make policy on a controversial subject matter back to the people and their elected representatives, per the opinion of the Court?
The headlines aren’t entirely wrong. If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says. On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
In this particular case, the majority opinion starts off by quoting the relevant statute and analyzing its meaning, whereas the dissent starts off by saying (quoting) that “climate change is the most pressing environmental challenge of our time”, and continues with a long litany of how bad it is.
Really, I find the entire thing to be rather crazy: if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this. At the same time, the EPA’s argument in this case was that the Congress has already delegated this to EPA. Considering that the Congress won’t pass a law confirming that yes, it did in fact delegate authority to execute these particular regulations (which, again, would render the entire SCOTUS decision irrelevant), I find the EPA’s argument of rather dubious quality.
This term alone the "conservative majority opinions" have been downright contradictory on "relevant legal issues". Women now have a right to defend their life with a gun but cannot defend their life with healthcare.
It's clear that they are simply using "originalism" to cherry pick what falls in line with their personal opinions.
The Supreme Court stated that you could not apply handgun laws in a way that privileged one group over another. Historically, if you were black, no gun. White and knew the governor? Weapon up.
The supreme court's policies have been pretty straightforward if you read the constitution. The legislature has the responsibility to write the law. Not the supreme court (which is un-elected), not bureaucrats (who are un-elected) - without explicit law to make it possible.
The fact that everyone is screaming that an unelected bunch of mostly white folks are returning power to congress and telling them - no, be democratic - reveals a awful lot about the current state of the United States.
The supreme court didn't take away the ability to get abortions. It just moved jurisdiction to states instead of at the federal level because there is absolutely no mention of abortion in the Constitution, when there absolute is mention of guns in the Constitution.
The majority of states in the US will have the same abortion laws they have always had.
If there was a handheld contraption with a trigger that could fire a small nuclear projectile that could destroy an entire city would the right to have one be protected by the second amendment just because it fits the general definition of a gun?
It's not a game. The founders could not have foreseen the types of weapons that we quite arbitrarily consider to be 'guns' as described in the constitution, therefore if anyone is playing games it is the people who call themselves 'originalists' when they pretend that it is that philosophy that informs their judicial opinions.
> Women now have a right to defend their life with a gun but cannot defend their life with healthcare.
You are just illustrating my exact point. Right to keep and bear arms is explicitly secured in the Constitution that it “shall not be infringed”, whereas nothing of this sort is clearly and explicitly said about abortion rights. Here, again, conservatives focus on what the law actually says, and liberals focus on their preferred policy, and if their preferred policy is not to be clearly and explicitly found in the law, it is instead found in the “emanations of the penumbra”.
> Right to keep and bear arms is explicitly secured in the Constitution
An individual right to keep and bear arms was newly discovered in 2008, in a 5-4 decision. It took 220 years for a single vote majority to find evidence of it.
> it is instead found in the “emanations of the penumbra”
That's a funny way of describing the Ninth Amendment.
The pushback on the "individual right" thing is always so funny to me, because if you really believe that 2A was about membership in a "militia" then it's meaning is that the government can't disarm itself.
It's truly hilarious, given the context of when it was written.
> During colonial America, all able-bodied men of a certain age range were members of the militia, depending on each colony's rule. Individual towns formed local independent militias for their own defense.
Even today, there are organized, state-run militia (the National Guard) and unorganized, independent militia.
I think you're deliberately missing my point, which is that to take your position literally you have to think 2A was about making a rule to keep only a state-run organization armed right after they had just fought (and won) a war of independence using, among others, individuals and "unorganized, independent militia" and the weapons they personally owned. It truly strains credulity to think the Founders sat down and wrote with that intent. Plus, you can actually just go back and read what they wrote about their reasoning back then if you want. It's all in the public record. That it took the Court this long to actually have to say it is more a function of the deliberate gaslighting that's taken place in the 20th century to convince people this right never existed. Even in Dred Scott Chief Justice Taney noted that if African slaves were given citizenship they'd be allowed to "keep and carry arms wherever they want".
I think most people that actually follow the "it was about membership in the militia" interpretation really do believe that only the government should be allowed to have weapons. That's fine, and there's an argument to be made there, but I'd appreciate it if they just made that argument rather than rewriting history.
The entire second amendment here:
“ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Notice the first phrase.
Absolutely nothing here says “every Joe wacko can have military grade arms in case they want to overthrow the government “
Tell me it’s originalism to interpret the words above in any way other than what it reads as: a description of state militias.
If congress disagreed with this interpretation, they could pass a law explicitly ruling it out. The power of the supreme court in this regard relies on the fact that congress has great difficulty passing any law at all, and thus whatever interpretation given by the supreme court is likely to persist.
>If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says.
The dissertation focuses on that. The actual reasoning might be based on something else. The court is strongly interested in projecting an image of being neutral, and of only going off of the wording of laws, rather than involving their own biases. Thus, the majority opinion should be read as an attempt to assign such a motive to their decision, whereas the dissenting opinions attempt to assign the opposite motive. That is, they attempt to suggest that the majority ruled this way because they are insufficiently worried about climate change.
In fact, it would be even worse than you say, because it would not be applied in a principled and consistent way. In actual practice, it would be default-allow if convenient, and default-forbid if not.
> No that would be correct. Congress delegated the power of they don't want to do that anymore they should take it away
No, they didn't. Congress delegating to the EPA (for instance) the power to regulate CFCs to save the ozone layer, does not also delegate the power to the EPA to regulate CO2 to solve global warming.
> The Administrator shall periodically review the list established by this subsection and publish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, but not including releases subject to regulation under subsection (r) of this section as a result of emissions to the air.
> [...] if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this.
At this stage in the climate crisis, we really need to be focused on direct results of political actions. The majority of the US population wants regulations to fight climate change, and the consensus among climate scientists is that if we don't aggressively cut carbon emissions immediately, things will get really out of hand. Therefore, if the Supreme Court is reducing the EPA's ability to help this, it is both anti-democratic and massively harmful to the public good. It really doesn't matter that the EPA is executive overreach according to some document written 230 years ago.
No, I strongly disagree. If elected representatives cannot agree on what is proper policy and pass it as law, I for one do not want some nameless bureaucrats be the ones calling the shots. Unelected bureaucrats creating policy as they wish, unconstrained by what the law actually says, is what actually is undemocratic.
Look, even as there might be general agreement among the people to fight climate change, there might be little to no agreement among the people as to how to actually proceed doing that. Because of this, you cannot say that blocking EPA here is undemocratic, because “ majority of the US population wants regulations to fight climate change”: it is very much untrue that majority of people want the exact policy that EPA tries to introduce, and have it be executed by EPA. It’s like saying that majority of US population want regulations to improve their commute times, so SCOTUS cannot block DoT from eminent-domaining land through cities and building 10 lane highways on it. Some people want that, sure, but others want more trains or zoning regulations to improve walkability, and there is no majority agreement here on the details of the policy. You certainly don’t want unelected bureaucrats with no accountability to voters be deciding major issues like that.
We are in such a desperate situation with the climate that we pretty much have to look at which of the two is most likely to enact policies that cut carbon emissions: is it the EPA, or Congress?
The current situation is not in any way desperate. All claims that a desperate crisis exists are based on the assumption of feedback loops that do not yet show up in any actual data and in fact many temperature datasets e.g. from satellites, weather balloons or the USA's own state of the art surface temperature network show virtually no warming at all for decades. To see warming you have to look at heavily modified composite datasets that are constantly being revised using methodologies so extreme that they literally create entirely new trends where the raw data doesn't contain any.
In an environment with as much epistemic uncertainty as climatology has, it is madness to allow bureaucrats to control anything at all. They are in no way fit to make important decisions on scientific topics.
Indeed, the reaction to this from lawmakers is really perplexing. They're claiming that the Court is "rogue" or something, but if you actually read what they wrote they are returning power from the executive to congress (or making it clear that Congress always had this power, not the executive). The reaction makes me think there are many lawmakers who are rather uninterested in making laws, and instead actually do want to see unelected Judges and executive bureaucrats implement their preferred policy options instead of doing the (hard) work of writing and passing those policies themselves.
The roe v Wade decision seemed to follow a similar pattern with the conservative opinion being about how there isn't really a basis for a constitutional right to an abortion up to viability (seems true) and the liberal dissenting opinion was about how the decision was going to be bad for women (also true) and how this opens up the floodgates to reversing a lot of other important supreme court decisions ( not sure how true that is)
I’m waiting for the first lawsuit against the DEA. What in the constitution gives the right for the Fedwral Government to regulate what we voluntarily put in our bodies or grow in our back yards?
> I’m waiting for the first lawsuit against the DEA. What in the constitution gives the right for the Fedwral Government to regulate what we voluntarily put in our bodies or grow in our back yards?
Yep. They can prevent growing your own wheat (in large quantity) because it impacts interstate wheat markets. You can literally bend this to apply to anything on that logic.
it feels kind of inconsistent. prior to roe being overturned the governments were able to regulate abortion to some extent. i assume some abortion medical procedures required a licensed doctor and i assume abortion medicine was regulated by the FDA. but at the same time the government was limited in how it could restrict abortion and this was justified by some privacy right which somehow didn't apply to the FDA regulation of abortion or medical licensing related to abortion. also, this same privacy right couldn't be invoked to allow you to take other medicines you might want. if you look at the arguments made in Roe v Wade I'm pretty sure you could claim you are taking recreational drugs as part of your marital sex routine and therefore this right to privacy should be extended to these drugs. i think if you honestly extended the general principal of roe v wade then a let of laws would be unconstitutional.
> Doesn’t work if it’s produced, distributed, and consumed entirely in a single state.
No, according to the Supreme Court, it's interstate commerce if a butterfly bats its wings and the resulting hurricane causes someone to buy a raincoat in another state.
IIRC, the actual case involved someone growing wheat their own land that they didn't even plan to sell. But since wheat was sold in interstate commerce, the court said any activity involving involving wheat could be regulated as interstate commerce.
> The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market.
I've had a similar thought process. We had an implicit right to privacy for abortion, but not for practically anything else (a couple other things, but some of them were also bizarre. Like how can you have privacy over who you marry if you're required to get a license before hand and they can still ban some classes/conditions but not others). If it is a right, it should apply universally. If not, then we need to start creating those rights in the constitution (where it requires larger agreement and isn't as easy to overturn). But maybe I'm crazy.
> We had an implicit right to privacy for abortion,
RBG didn't see it that way.
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights."
Seriously curious. If I consume somthing, don't I now posses it (it's in my body) or didn't I have to posses it for at least a moment (in order to consume it)
I'm just curious in what ways this distinction would play out. I can see if "consuming" was illegal and "possession" was not logically works but it's harder to see how "consuming" is legal and "possession" is not doesn't effectively make "consuming" also illegal.
Devil's advocate: (I won't take on the atomic pile question since we're talking about consumables)
Operating a meth lab is dangerous _because_ it's illegal. If it were regulated and licensed, it would be no more dangerous than say operating an 18-wheel rig.
Is there a constitutional right to marry someone of another race? (Loving vs Virginia). Is there a constitutional right for gay people to get married (Obergefell vs Hodges)? Is there a constitutional right to buy contraceptive?
Guess which two of those Thomas wants to revisit and the one he probably doesn’t?
More specifically, the dissenting opinion argues that the right to abortion logically follows from all the prior rights granted to women, eg own property, voting, divorce.
It's my understanding it's argued the right to an abortion is given from the 14th amendment.
I didn't really see anything from the dissenting opinion about how the right to an abortion is given by women's right to voting, property or divorce (?).
How could they have been more explicit? From the dissent (emphasis mine):
JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting.
For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.
...
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an un- safe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.
...
The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.
The argument is that the right to abortion follows from the 14th Amendment's guarantee that "liberty" is not deprived without due process. This is linked to other rights that were derived from the same clause, including contraception, cross-racial marriage, and same-sex intimacy and marriage. Some of the text you quoted also seems to hint at (but does not explicitly discuss) the other clauses of the 14th Amendment, the one about "privileges and immunities of citizens" and the one about "equal protection of the laws". Other parts you quoted are simply arguments for why abortion is part of "liberty".
Regarding your previous examples:
- Right to own property: In Kirchberg v. Feenstra, a law giving sole control of marital property to the husband was found unconstitutional under the Equal Protection Clause. So it's related to Roe v. Wade's Due Process argument, but not quite the same.
- Right to vote: This was explicitly granted by the 19th Amendment. Before that, the Supreme Court had ruled in Minor v. Happersett that the 14th Amendment's Privileges and Immunities Clause did not give women the right to vote, though one might imagine that the Roe court (or the Dobbs dissenters) would have disagreed (or would have found that right in a different part of the 14th Amendment).
- Right to divorce: I can't find any major Supreme Court cases trying to establish such a right. All fifty states allow for no-fault divorce, but that's grounded in state law and is only true as of 2010.
Maybe one positive (very long term) outcome of this food fight is the rediscovery of the 9th Amendment and less reliance on the Due Process clause.
That con argument that the right to an abortion is not in the Constitution baffles me. Um, exactly. The framers anticipated these kinds of circumstances. Hence the 9th Amendment.
It’s not a child or person until it’s born alive. Up until birth a fetus is a parasitic organism. If unwanted then the fetus is trespassing in the host body. If unwanted the parasite is robbing from the host. By these inconvertible truths if the fetus must be born then it must be tried for trespassing, battery, and theft and the counter party to conception must be held equally liable. Thus, the unwanted parasite must be terminated in order to preserve the rights of the host as plainly protected by the ninth, tenth, thirteenth and fourteenth amendments.
> It’s not a child or person until it’s born alive. Up until birth a fetus is a parasitic organism.
And many many many people disagree with that idea. Denying that people disagree with that distorts your picture of the matter.
So many on the left view this as some kind of patriarchal ruling, but in my experience it's conservative women who are more against abortion than conservative men.
Your lack of a response to the majority of my comment could be construed as you arguing in bad faith. The distortion here is of your own.
People are free to disagree with the personal choices free citizens make. People are not free to impose their beliefs on others and force them to carry or birth a parasite through coercion or force. Any conversation about forcing women to birth anything that does not include radical changes to:
healthcare, social safety net, the best parental leave laws in the world, wide carve outs for incest, rape, medical problems, birth defects, litter reduction, to name a few things
is a blatant exposition of the moral bankruptcy of the forced birthers seeking to impose their ideals on others through governmental violence. I haven’t met a forced birther yet that’s thought through all the complications of their grand scheme and come out the other side still a forced birther. Typically they just get mad and devolve into all sorts of fallacious statements, sometimes they storm off, and I’ve walked a few level headed people through enough of the realities of forced birth for them to autonomously realize that such laws cause so much suffering and cost so much in real economic and tax dollar terms that forced birth is regressive and will make the states it takes effect in worse places in all important measures like: infant mortality, student test scores, parental homicide, violent crime, etc— because the research on these topics is unanimous. Access to contraception whether condoms or third trimester abortions is an essential right to maintaining and strengthening a modern society. Anyone that doesn’t want to live in modern society is free to go build an island and reinvent the conservative turned libertarian ascent into liberalism wheel.
You really should check your ideological emotions at the door if you want to be taken seriously. I have no alternative but to accept your concession that parasite is a valid term for an unwanted pregnancy and that your dissenting arguments lack intellectual rigor. If they had any you’d have used them instead of dismissing me for imaginary reasons that only make sense to someone that adheres to a regressive belief system that’s perverted older belief systems from multiple millennia ago that considers unborn fetuses of incestual rape by religious leaders to be sacrosanct. To be clear, the only significant groups opposing abortion are Christian by filling or membership percentiles.:1
The fact that you can’t appreciate a minuscule difference in terminology, and the pointed intent, is all I need to know that you wouldn’t be arguing in good faith. demanding anyone name parasites children is nothing more than a limp wristed attempt at controlling the language used for the discussion as a propagandistic method to be used after a technical (read: pedantic on the level of grade 6 debate club) victory or worse, a legal win due to the erosion of the church state divide which is a flagrant violation of the constitution. I am guaranteed my right to abort as many parasites as I want by my adherence to Satanism as you must bring to term despite crippling defects due to incestuous rape due to your obviously strict adherence to your religion that considers unviable parasites a child. So please tell me about how America cares for children with severe birth defects sacrificed to the care of the state are cared for and how the regressive religions against abortion get the funding to guarantee every abandoned child a life equivalent to the American median. I’ll wait longer than I should because these statistics are impossible to provide because the GOP stops legislating for parasite rights as soon as they’re birthed. I’m also waiting for these organizations to give up their tax exempt status due to their flagrant political meddling.
Those words in the dissent would work as a nice template for a human right:
The government could not control a human’s body or the course of a human’s life: It could not determine what the human’s future would be. Respecting a human as an autonomous being, and granting them full equality, meant giving them substantial choice over their most personal and most consequential of all life decisions.
It is very clear from the text that the decision to have a child is more than just the pregnancy or the birth. It is also about the life-transforming consequences, the childcare and the time and money to raise a child. It is about the social impact and the lives that such choice impact.
All those belong in a human right where willing consent of parenthood should be in focus.
Yes and: The pedantic nature of our adversarial system really bothers me. The focus on very narrow circumstances and edge cases. It prevents reaching reasonable outcomes.
There are always dilemmas and paradoxes. The proper job of the Court is to find the middle path. Consider the whole system and strike a balance. Arbitrate an acceptable consensus.
And that requires mitigating a decision's downsides.
That was the approach of the German Courts. In addition to proscribing the rules around abortion, they also put into place structures to reduce the need for abortions, improving the health and well being of all women and children.
> On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
The Supreme Court is not supposed to set policy. It's only supposed to rule on if the policy set by others (Congress) is constitutional or not.
If the EPA could do anthing to stop emmisions, banning power plants from existing at all would satisfy "do anything to stop emmisions", so would "depopulating the planet" (no people, no need for power plants). Those seems like they make it pretty clear they need specific limits. They were given specific limits. The court confirmed that.
Congress needs to increase what they're allowed to regulate and how if they want more power. It's frustrating that that's so hard to come by but it's hard to imagine how else it could be
> if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this.
This doesn't accurately represent the present situation on this or really any topic. It makes is sound like members of Congress simply don't care. Unless the filibuster is removed or reformed, a party wishing to legislate on any controversial issue needs a super majority in the Senate to pass the legislation just in that chamber of Congress. They also need control of the House and the presidency. There is plenty of political will in the Democratic caucus to pass this legislation, but due to gerrymandering in the House and the inherently unrepresentative nature of the Senate they cannot get enough votes to pass legislation, however much they may wish to, on the rare occasions the stars align and they have control over both the executive and legislative branches. The Republicans need control over only one of these three choke points to stop legislation. And now that they have a generation of control over the Supreme Court, and the Court has demonstrated that they regard legal argument as post facto justification for political decisions, the Democrats are well and truly screwed. There may be some Republicans who secretly would like to do something about any one of the major catastrophes facing the nation and the world, and some may claim this in public, but because their co-partisans are making total political war on non-conservatives at the moment they can't actually do anything or they face the mob.
Basically, "political will" isn't the issue. It's our crappily designed "democracy" mixed with total political war, strident propaganda, and millennialists who are happy to let the world go to hell because they think they're going to heaven.
In my mind all this means that things are working as intended. The Constitution was set up to limit what the federal government can do, and the Congress (particularly the senate) was set up to make it hard to do things that did not have significant support over and above a simple majority.
FDR set up a bureaucratic state to try to get around this, but it’s not what the constitution envisioned.
I for one am happy that unelected bureaucrats (who the voters have no way to get rid of) now have less power, and that politicians who can be held accountable now have to act explicitly to make big changes. Again, working as designed.
> I for one am happy that unelected bureaucrats (who the voters have no way to get rid of) now have less power, and that politicians who can be held accountable now have to act explicitly to make big changes. Again, working as designed.
Politicians are held accountable for not doing things as well. In our current system whoever is in power is held accountable, even if they didn't do anything because they were blocked by our byzantine form of government. But the politicians who should be held accountable are the ones who blocked it. Do you view this as a good system?
Consider a scenario:
President Bob and the Do Something party are in power. They really, really, really want to do something. Everyone is yelling at them to do something! Something must be done! But the Do Nothing party uses some procedural mechanism, or their control of the cloak room, or the secret password written on the back of the Constitution, to keep anything from happening. The public doesn't understand the system, because few people do; all they see is that NOTHING IS GETTING DONE. The Do Nothing party is quite pleased to stick all the blame on the Do Something party. They don't enlighten the voters. Even while they block any action they go on TV and solemnly intone about the fecklessness of the Do Something party. They said they would do something! Look what they do when in power! So feckless! So the voters punish the Do Something party at the polls.
This is more or less how our system of government works.
Sometimes something needs to be done. But we can't do anything!*
* Footnote: this isn't strictly true. The Do Something party will cooperate with the Do Nothing party on those rare occasions when the Do Nothingers actually want to do something. The Do Nothing party will not reciprocate.
Nice rant, however you are ignoring the dissenting opinion above, and your comfortable tone indicates satisfaction with the status quo, which generally never needed more support, and brands you as one who would side with power everytime. I wouldn’t trust you in my organization.
Congress wouldn't ratify 99% of court decisions even when the text of their bill is very clear l. The argument you make in the last sentence of your post is very weak.
This case could have been decided either way. The result clearly depends on the makeup of the Court and the justices' personal inclinations. As evidence: a very similar question was decided by the Court in 2009, with a completely different result [1].
This doesn't make OP's point less true: the headlines surrounding this decision are misleading. This is not judicial overreach, it's an application of a different theory of judicial review than we've become accustomed to, and it's not necessarily a bad one.
If we don't like it when the police creatively interpret laws to target minorities, can we allow the EPA the authority to creatively interpret laws to target fossil fuel companies? Is it possible to give the executive authorities the power to be creative, but only in the service of a good cause? This Supreme Court believes it's not, and that seems like a reasonable position to take.
A court that is unconstrained by precedent can arrive at any policy outcome it wants: simply tailor a "novel" legal theory that gives you the desired result, then ignore past decisions that use different theories. Past Courts have worked extremely hard to avoid this: they viewed it as fatal to the legitimacy of the Court. They were right.
But that’s exactly what the Roe v Wade decision was - decide what policy you want, then have the court come up with an argument as to why that right exists.
It’s not supposed to work that way. The legislature makes laws, the court interprets under the framework of the Constitution.
Precedent is important, but it’s not supposed to create law out of thin air. It’s supposed to be based on a firm set of decisions that flow from the Constitution and law.
Here's the thing: some of us start from the point of view that the Constitution might be bad. I know it's sacrilegious. But from there, all sorts of rulings seem like improvements on a baroque 18th century piece of paper. If you DO uphold the Constitution as being "the greatest legal document ever made" (faith-based view) then yeah all these conservative SCOTUS put-downs seem logical to restoring the US source code. It's just a piece of paper though being stretched to apply to situations unimaginable to their originators and badly need of updates.
The constitution may be bad. We've had a number of amendments, most of which improved in in very critical ways.
The point is that we should live under legislation that is agreed upon via democratic means. Congress has pretty broad powers to create laws. Where those powers are circumscribed, such as with gun control, we have prescribed mechanisms for amending the constitution and making it less bad.
I'm highly critical of the court legislating from the bench, whichever direction it does it from. I'm _extremely_ frustrated and dismayed that our legislative branch punts so many contentious issues to the courts. If the court is now less willing to play that game, maybe we'll go back to deciding things in the legislature, where we can have a debate that is values-based, and not just based on the reading of a baroque 18th century document.
For what it's worth, I favor broad government action to address climate change and excessive CO2 emissions, but it's going to be better for everyone if there's some horse-trading here and we get some broad buy-in instead of having it be imposed by unelected government appointees that are not operating under a broad mandate.
If we can't get broad buy-in, I guess that means we can't deal with climate change democratically. Maybe then one wants to advocate for non-democratic measures, but then we should just be honest about that.
It's exactly this kind of attitude that the Constitution was designed as it was. Too many people are willing to circumvent normal legislative actions because "we're doing the right thing". What they end up forgetting is if they can do it, so can their opponents. "Those who are willing to give up freedom in exchange for <x> deserve neither.
The Founding Fathers seems smarter and smarter the more you dig into it.
Can you cite some materials to back up your claims?
Besides the latest Roe V Wade decision deviating from two previous decisions which were decided by larger majorities, it also cites ideas based in “originalism” or constitutional fundamentalism which don’t even make sense. They argued there is “no general right to privacy” outlined in the constitution, which clashes greatly with any reasonable reading of the 4th amendment.
So please, do explain how the 4th amendment doesn’t grant any right to general privacy, and how this current highly political court is somehow actually being more legally objective than the previous two which created and upheld decisively the ruling which is also generally agreed to align with reasonable moral stances
"A different theory of legal review" which here means coming to a predetermined policy decision, and then inventing legal justification for it, no matter how flimsy.
I've had plenty of educated, well-informed individuals make exactly the same legal arguments to me for decades. Whether or not I agree with the reasoning, it's not hard for me to believe that the Supreme Court justices believed the principles they're following long before they arrived at this decision.
You can disagree with the legal justification, but that you disagree is not evidence that it was invented to achieve a specific goal.
Thomas is carrying out a personal and vindictive agenda without regard to the harm caused to hundreds of millions of people. He’s neither principled nor objective. Kavanaughs an angry drunk coasting off connections, wealth, and privilege. Barrett’s a perjured radical theologist trying to legislate handmaids tale into reality from the bench.
> This is not judicial overreach, it's an application of a different theory of judicial review than we've become accustomed to, and it's not necessarily a bad one.
Originalism is as bad in jurisprudence as orthodoxy is in religions. It is extremely dangerous to act like there haven't been hundreds of years of civilizatory development in all areas since the scriptures were written. Originalism/orthodoxy/fundamentalism, especially one that doesn't take contemporary issues of the text's origin into mind, always is bad.
Add on top that the judicial picks of the 45th were carefully selected for their attitudes and the GQP ignored a boatload of red flags for every single one candidate, and now it's not just "application of a different theory", it's a full-blown takeover.
> Originalism is as bad in jurisprudence as orthodoxy is in religions.
There's nothing stopping you from rewriting the laws. Religions don't work that way.
Although, the US constitution is almost a religious text the way it's treated as almost sacred. Why does anyone still care what the founders intended? They're not prophets...
> Why does anyone still care what the founders intended? They're not prophets…
As a foreigner whose country changed constitutions a good dozen of times since the USA passed its own and amends it more or less yearly, this used to baffle me. My take is that there is so little that units American together nowadays that they cling strongly to every anchor they can find.
> Originalism is as bad in jurisprudence as orthodoxy is in religions. It is extremely dangerous to act like there haven't been hundreds of years of civilizatory development in all areas since the scriptures were written. Originalism/orthodoxy/fundamentalism, especially one that doesn't take contemporary issues of the text's origin into mind, always is bad.
No it isn't. Your analogy doesn't really work because religious scriptures can't usually be amended (within the context of a single religion), while there are well-defined mechanisms for amending and updating law (e.g. what legislatures do all day). Basically: update the text itself with the needed changes, not the interpretation.
There are serious problems with using interpretation to update law: it makes the text ambiguous, because who knows how some loosely-constrained judge(s) will decide to "update" it in the future, and it's anti-democratic because it bypasses the democratic political bodies who's actual job it is to actually make the updates.
The problem with US constitutional law right now is that a lot of people want certain things to be "constitutional" when there's no actual consensus for doing so (a consensus isn't 50% + 1, it's "pretty much everyone agrees").
Actual originalism is impossible, even if you isolated yourself from social cults seeking to cultivate corrupt judges like the federalist society.
All humans have inherent biases and lenses and perspectives. Do jury duty sometime. Actual factual recollections vary in details and even factual accuracy
In an absolutely pure form? Sure, but that's true of most good things (e.g. justice). That doesn't mean the concept is bad or that shouldn't be pursued to the greatest degree possible, especially when the alternative is to have someone interpret the law like Humpty Dumpty when it suits them (https://www.fecundity.com/pmagnus/humpty.html).
> If we don't like it when the police creatively interpret laws to target minorities, can we allow the EPA the authority to creatively interpret laws to target fossil fuel companies?
We can under the legal theory "What I want goes; what I don't want, no."
> The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem.
But it's not a major new problem. The Congress that established the EPA granted the "stretching" along with it, otherwise it would take an act of Congress to determine the color of the Post-its.
The new rulings are farcical zealotry. Apparently, the only people capable of making decisions died 100 years ago and anything we've learned after the Civil War doesn't matter.
Sure, whatever. These guys are great at espousing some high minded principle that happens to fit into whatever the desired outcome happens to be.
These reactionaries represent the dead hand of a generation of people who control or seek to control to guide society to meet their own generational/dynastic wealth and power goals.
I’m sure you’ll feel differently as the assaults on the 14th amendment continue and things like the right to privacy are whittled down to a nub.
If recent SCOTUS decisions are a dead generation reaching out of the grave to get their way in the end against the united consensus of the living, then the living should have no trouble sorting Congress out and getting the right laws and amendments passed the proper way.
Of course, the truth is that living generations are not nearly so united against this as you seem to be suggesting. There certainly isn't enough consensus to pass any amendments. It's not really the dead hand of a bygone generation doing this, it's people who are still very much alive and relevant who disagree with you.
The whole concept of a corporate fourth estate informing a populace how to vote contrary to their own interests is surely a major problem our founders weren’t considering very heavily, given the media of the time.
I can’t imagine the World War generations silently watching Tucker give aid and comfort to Putin either…
I can see how corporate influence might play a role in this EPA decision, but most of the ire being thrown at SCOTUS recently is about abortion and I don't see any clear corporate pro-life consensus. On the contrary, I expect most corporations want to keep abortion legal to protect their workforce.
> I can’t imagine the World War generations silently watching Tucker give aid and comfort to Putin either…
Yes, the world war generations had trouble with the principle of free speech; for instance, arresting people for protesting the draft during the first world war: https://en.wikipedia.org/wiki/Schenck_v._United_States And do I need to remind you of the mass internment of Japanese Americans, convicted of no crimes, during the second world war?
I like to think we've made some progress since then.
Ah yes, this is all perfectly above board. It just so happens that after a huge amount of horse shit by the republican party to appoint certain specific justices, there are immediately perfect test cases to put everything exactly the way they want it.
No. This was planned, planned very in advance, planned in the open. The republican party has openly wanted to do this for decades, put a plan in motion and executed very well. It is obvious that these justices are completely beholden to the republican party, and should be seen as such. We can play all the dumb semantics games we want, but none of that changes that the Supreme court is part of the US government, that their decisions have broad consequences, and that those consequences are obvious.
If you do "the right thing" and it leads to millions of people oppressed when "the wrong thing, or nothing at all" would have led to zero suffering, did you really do the right thing?
That's the strategy of the Federalist Society, make rulings via the undemocratic SCOTUS under the guise of giving states/congress power, but then also making sure that state elections are undemocratic via gerrymandering, voting laws, etc.
It doesn't help that taking action on matters of national importance is inherently difficult in a Federalist government.
from Wikipedia '... The Federalist Society provides its 70,000 members with "intellectual sparring and professional grooming.'
without taking sides on this attorney gang, it seems to be like a bunch of professional boxers and others here are mad because they cannot fight. I do not want to fight lawyers, but calling them a conspiracy, when they specifically engage and practice debate professionally, is sort of pathetic honestly.
I grew up going to FedSoc. officially, it's just a debate society - the panels are streamed on CSPAN, it's all public. unofficially, it's a Mecca of networking for conservative lawyers. the upper echelons are nearly exclusively Catholics, and the founder provided Trump with shortlists of Justices he could pick from. and all that networking made it happen. it's no coincidence all the recent nominees are Catholic.
Well there was once a Congress that passed the Missouri Compromise which institutionalized hyper-partisanship and another that was so ineffective its successor Congress literally fell apart when several States seceded from the Union and those States then went to War with the Union.
So, cut the hyperbole. Partisanship has always been a political reality. The EPA is capped to the powers that Congress gave it, and does not have the autonomy to expand that power at will because they’re subordinate to the President and the President cannot unilaterally and legally make laws on his own, nor can any of the agencies which answer to him.
I fear what a lot of what outspoken "progressive" types (and yes, before anyone asks, also the MAGA crowd) want is a CCP-style political system as long as they're the ones in control. Concepts like separation of powers and rule of law are merely obstacles to smash through on their road to utopia.
Correct. Which is why both of those groups you listed along with many others need to continue to lose elections and fail to attain power because the endgame for them is eliminating the possibility that they ever lose an election again. Like the CCP has.
Few progressives want sprawling bureaucracy. Rather, that’s typically what we get out of social safety nets due to conservative sabotaging of the process and text.
Sprawling bureaucracy is a byproduct of what you get from investing the government with additional functions. Every office you open whether Civil Rights or Agriculture or Patent Office needs staff. If we had a single payer system, there would necessarily be an enormous bureaucracy attached to it, most likely an expansion of the existing Medicare/Medicaid bureaucracy.
You just don’t get one without the other, even if you cut the staff down to the bare minimum that can still efficiently manage government programs you still end up with a sprawling bureaucracy.
There’s a difference between sprawling bureaucracy and necessary bureaucracy. Are you really suggesting that all bureaucracy is inherently bad and defaults to wasteful sprawl?
Are you saying a “necessary” bureaucracy is necessarily not a sprawling bureaucracy?
In any case, if the function invested in the government is a misapplication of public money then the bureaucracy servicing it would also necessarily be unnecessary. If the function is necessary, that does not mean the bureaucracy servicing it isn’t sprawling. The military has what could be termed sprawl, but that’s a function of the broad scope of its missions and global reach.
Correction: it would replace multiple competing staffs (“bureaucracies”) of private insurers with the ability to take losses and go out of business with one bureaucracy with a chain of command spearheaded by the POTUS backed by the full faith and credit of the United States. My example was not an invitation to discuss the merits and demerits of single payer healthcare in a different topic, but to point out that for every function you invest the Federal government with, you get a corresponding bureaucracy ultimately subordinate to basically one guy. Doesn’t matter what the function is, you’re expanding his staff.
And yet, fixing that problem -- the problem of the ineffectiveness and hyper-partisanship of Congress -- would have so many positive effects for all of our lives regardless of our ideological perspectives that it should be our number one priority as the electorate.
The ineffectiveness and hyperpartisanship of Congress is directly attributable to the ideological perspectives of the electorate.
Also, Congress is not as ineffective and hyperpartisan as you think. It's only on issues that have public attention that they act this way. When nobody is looking they move quickly and decisively.
Eliminating partisan gerrymandering would go a long way.
Less than 10% of congressional districts this year will be competitive (defined as the most recent presidential election margin was within 10 percentage points). Only 41 seats!
I haven’t really seen a realistic plan to do it though.
OTOH, results of elections to congress (house of representatives) looks balanced - total seats gained by each party matches popular vote with deviation < 1%. Which is much better than i expected considering single-seat system leads to advantages for dominant players even without gerrymandering.
Even in my home country, which is european country with proportional system and no gerrymandering, such deviation is higher (< 2%) due to rounding effects.
Gerrymandering is main issue in (some) state elections (e.g. Wisconsin 2018 is egregious example), not federal elections.
The totals are a little misleading because there is partisan gerrymandering on both sides, so they somewhat balance each other out. Courts have also been highly involved in rejecting the most brazenly disproportionate maps, but that may soon change next year due to the newly constituted Supreme Court.
The bigger problem is that it incentivizes partisanship and extremist views in uncompetitive districts because the representative is effectively decided in the party’s primary election, not the general election which has higher turnout and a more representative electorate.
Also the fact that 90%+ of congressional seats are safe except for the occasional primary opponent discourages accountability. Our districts are so distorted, they make no geographic sense. And it means a large percentage of our population is permanently disenfranchised, which dampens voter participation. It really is one of the biggest structural problems of our democracy right now.
Do you have a source for that claim? I find it hard to believe that partisan conduct didn't exist on the hot topics of the day throughout history.
For example, it took years to create a constitution, then more years for a bill of rights. There was a lot of federalist vs anti-federalist debate. Then things like slavery, segregation, etc. I mean, we fought a civil war. How much more partisan can it get than that?
Perhaps there is a hyper-partisan congress because it’s a reaction to what some have viewed as a hyper-partisan Supreme Court.
On a positive reading, the Court is now saying states have the right to choose these issues for themselves. There are means in the constitution for overruling a minority of states, that is by passing a constitutional amendment. By allowing and even encouraging the Court to make these decisions, Congress has built up a democratic deficit which has exploded in its face.
On a negative reading, sadly, the Court is just as partisan now but in the other direction. Thus the deficit won’t go away.
The previous court was conservative on a linear scale. The current court is radically conservative with fascist imperialist theological trends becoming more apparent by the day.
Read the dissent and see if you don't find it equally convincing. Supreme Court justices are very smart and very good at their jobs and it's not surprising that pretty much everything they write sounds reasonable and well-argued.
Key quote from the dissent:
> Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution”
and that “may reasonably be anticipated to endanger public health or welfare.”
So, does CO2 qualify, or is it a "major new problem"? Sounds like a policy issue to me.
If they had convincing scientific evidence that marijuana both contributes significantly to air pollution and endangers public health, yes I would be.
Edit: Actually I think the particular Clean Air Act section in question only covers buildings or other "stationary sources", so I don't think marijuana would qualify unless a building was emitting marijuana smoke.
Why? This authority was intentionally granted by a democratic legislature. If it's too broad, the act can be amended. The "technocrats" are only in control of what we have voted to let them control. The text is pretty straightforward:
> The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.
That is explicitly delegating these decisions to the judgement of the EPA Administrator. This is extremely normal, every government agency works like this.
Not really. The court's conclusion is that Congress didn't anticipate such significant consequences when they granted this authority, so the EPA has to wait for Congress to confirm they're ok with it. They're saying that yes the EPA has this power on paper, but "a decision of such magnitude and consequence rests with Congress itself", so surely they didn't actually mean to do that. Maybe they made a mistake, we have to ask again to be sure.
Maybe they did make a mistake, but if so they can fix it. I think what the court majority is saying here is patronizing and wrong. There's a perfectly normal process for Congress to amend a law if it accidentally gave up too much power.
On one hand you have democratically elected representatives (less democratic than a direct democracy, but still reasonably democratic) delegating power to the executive branch (who's lead is elected by the electoral college, which is substantially less democratic than direct democracy.) Stack the two of these together and the end result is less democratic than either considered in isolation. But you want to go a step further and empower unelected technocracts in the executive branch to ban harmless herbs if they claim they have "convincing scientific evidence" that marijuana is harmful. And I guess that isn't even enough for you; presumably you also object to the judicial checking the power of those technocrats.
I prefer that matters like this be handled in an actually democratic way. Cannabis was legalized in my state because I and others in my state voted to make it so. That's democracy. Technocracts making unimpeachable "scientific" decisions isn't democracy, it's a faint shadow of democracy. Referendums are democracy, and are the democratic way to resolve these sort of social disputes.
Why is passing a marijuana legalization bill democratic, but passing the Clean Air Act is not? I guess I am still not understanding the core of your argument.
When your state legalized marijuana, it delegated a ton of decisions to unelected officials - individual business licensing, labeling details, dispensary sanitation standards, valid medical applications, etc. There is probably a whole commission of unelected people who go through a formal rulemaking process which involves collecting feedback from people like you, just like the EPA.
It's ok if you don't like this model, but you can't claim it's not what Congress intended and not a normal state of affairs at the moment. It's just how the country works, we don't have Congress vote on every single pollutant, medical device, potential drug, import/export restriction, endangered species, etc.
> This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.).
Dissenting opinion quotes the following, which to me (and at least one supreme court judge) does not seem to limit this power:
> “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 [EPA] Administrator determines has been adequately demonstrated.” §7411(a)(1).
> Headlines about Supreme Court cases are almost uniformly misleading, because they suggest the Court is making decisions on policy issues rather than legal issues.
I agree with this completely, but it doesn't help when justices begin their opinion / concurrence / dissent with a long policy discussion before talking about the legal questions. That's been the case in several of the recent decisions.
You don’t get say civil asset forfeiture from simply reading the constitution and ruling based on it.
Cases make it to the Supreme Court because the outcome is ambiguous, so the court can’t actually make decisions based on an objective standard. It’s simply not how they operate in this or any other court.
Instead the outcome is decided and various legal justifications are provided by both the justices who agree and those who disagree. You can agree or disagree with the outcome of any case, but there’s a reason the appointment of Supreme Court justices is considered so politically important, it’s a political job.
even Scalia thought Thomas was a kook for inventing the "major questions doctrine." where in the Constitution can you find this? separation of powers, apparently, if you're looking through a seer stone in a hat at some golden tablets.
the majority invented the doctrine to neuter Federal agencies.
That is because that's what they do. The supreme court is a political organ making very conservative political decisions. Much of the time the sort of headlines you seem to prefer would be navel gazing that's not important to most people and would be misleading distract from the real world result that it's gutting much of the EPAs powers? Why because conservatives don't like the EPA. I applaud the headline for getting at the truth of the matter
What’s interesting about this ruling (if you listened to the oral arguments and read the ruling) is that it appears to undercut the ability for any executive agency to make a rule, under them claim that congress cannot delegate its powers.
So the FAA can’t determine and then require that aircraft have transponders. Congress has to do this.
I don't agree it will be chaos. Congress has for far too long abdicated what it is supposed to be directly responsible for to unelected bureaucrats that exist in agencies that are overseen by the executive branch of government.
Congress is now free to focused on creating chaos between the people that elect them. When is the last time you've seen anyone from Congress campaign on any substantive issue? I've not seen it in my lifetime they leave that campaign up to the president. Congress is invested with the sole power to regulate our money when is the last time you've seen them do anything except throw up bloated budgets? They have completely advocated that power to the Federal reserve of which they exercise zero oversight of and apparently leave it to the president who also lets it run autonomously.
So what you call chaos is reconnecting the actual responsibilities of our elected representatives with their duties. I for one would very much enjoy seeing my elected representative actually doing their constitutional duties instead of pitting citizen that one another's throat in order to get reelected again.
They are not. Even if we assume congress wasn't a complete gridlocked mess, they simply do not have the bandwidth. There 535 Members of Congress and they work less than 200 days a year in a typical session.
How many regulatory bodies are there that need rules passed? I can think of the FAA, FTC, EPA, FDA, USDA, and the NRC just off the top of my head. A quick google search shows there are 19 of these rule making agencies. Even with a wide distribution of rule making authority, these agencies struggle to keep up with our rapidly evolving world.
Forcing congress to hear and make a decision on every single regulation these agencies propose would be a bottleneck that brings this country to it's knees.
> There 535 Members of Congress and they work less than 200 days a year in a typical session.
Sure, Congress is in session for about 200 days, and even when it is the elected officials aren't typically on the floor for the full day. But that doesn't mean that when they aren't on the floor they aren't necessarily working. They could be meeting with constituents, with their staff, reading bills, going to committee meetings, just meeting with other reps/senators etc.
They have no obligation to actually show up. Many miss more votes than they are present for.
Also, most sessions only run a few hours, and many more are pro forms, where the minimum quorum show up (I think this is something like 15 or 20), open the session and then immediately close it.
Congress members bring snowballs to the floor as evidence that climate change isn't real. Some of this behavior is due to personal beliefs, but there are other factors:
So due to the ignorance and corruption among conservative lawmakers regarding climate change and carbon emissions, congress has been in an ideological deadlock on the issue of climate initiatives. The EPA existing somewhat independent of that framework was a benefit.
Congress writes laws vague enough for the experts to implement the policy. It's always been this way. It will be total chaos if Congress has to explicate the specific.
1. Dunning-Krueger or, in other words, Congress probably thinks they know better.
2. Politicians, per definition, are elected to represent the interests of their constituents. Many constituents disagree with experts (climate change, for example). QED, there is little motivation for politicians to listen or follow the advice of experts, especially if an expert's conclusion is not popular.
So they should prepare law novelization for cabinet, cabinet should push it to legislature, and legislature should vote on that. Like in any other country.
> Congress has for far too long abdicated what it is supposed to be directly responsible for to unelected bureaucrats that exist in agencies that are overseen by the executive branch of government.
Yes, that's what the executive branch is for. That's how our government and basically every government in the history of the world has worked.
> When is the last time you've seen anyone from Congress campaign on any substantive issue?
Literally every campaign in my life that I've had any exposure to. Campaigning on real issues is not hard, the problem is getting into Congress and then being unwilling or unable to follow through.
have you met any congress personnel? fence posts would be insulted to be compared to some of them.
there's definitely a gap between regulatory officials making regulations and legislature codifying the details. This is where appointing heads of those departments is supposed to come to bear.
It's a mess, but the answer isn't to let lobbyists and special interests burn the house down.
The right answer here is that Congress explicitly delegated a decision to the EPA administrator, so they should be allowed to make that decision. The court's decision is well-argued, but it seems to come down to "I know Congress said you could do this, but it's a really big deal and they might not have thought it through enough, so you have to go ask for permission again before you do it". It's kind of patronizing to both the EPA and Congress, and I don't think it's a good decision or precedent.
> Over 60% of the US population think abortion should be legal. More than half of US states are (or are very likely) to institute abortion bans.
Could it be that a majority of the population in those states are against abortion? Wouldn't
Why should this be regulated at the federal level?
I'm pro-choice but I can understand that some people believe life begins at conception and therefore abortion is murder. If a majority of people in a state believe that, isn't it democratic to let them make laws accordingly?
There’s a million nuances in it, rape, incest, medical reasons, and the time of abortion.
The abortion debate doesn’t exist in Europe because almost all sides managed to agree on a 12 week limit and it’s left alone.
I would guess in 10-20 years the US would arrive at the same conclusion, with small differences between red and blue states.
Stop making this a yes or no issue. And that’s not what the Supreme Court did. They didn’t ban abortion. If 60% want abortion legal they can vote for whoever gives them that.
> Abortion isn’t 0 or 1, legal or not legal.
As others have already pointed out below, and I already mentioned, over half of states are ready to enact total bans. The repeal of Roe doesn't make abortion illegal, but it does make a _ban_ on abortion legal, which is exactly what is happening.
> I would guess in 10-20 years the US would arrive at the same conclusion, with small differences between red and blue states.
This data visualisation [0] highlights the problem with this approach.
This isn't an issue where you can sit back and contemplate it as some abstract exercise of democracy. So many women will die, or be persecuted during that 10-20 year span you mention and it is completely needless. No one should be adopting a "it'll all work out in the end" mindset.
Yeah, except you are taking a political or moral stance right there, so it’s not fair to the rest of the population. Many people believe you are saving many lives in those 10-20 years.
In Germany's last election, a major issue was about removing a clause disallowing "advertising" abortions. It remains controversial that people seeking abortions have to get extensive psychological counseling from an extremely limited number of therapists before getting an abortion.
In Poland abortion is banned entirely and they are about to start keeping a pregnancy register.
Ireland and Spain also have ongoing debates about the particulars of their laws, with Ireland having just legalized it all in 2018!
The GOP are going to immediately nuke the filibuster and ban abortion at the federal level if they control the government after the next election. Pence has even said this out loud recently. It will likely make no exceptions for rape or incest either. The majority of the country is against this.
Tell this to the states passing anti-abortion legislation. They seem to view it as a binary. At a minimum, the burden of proof for exceptions is high with the penalties being life in prison in more than a few states.
The actual problem is a poorly educated voting population being manipulated into voting against their interests to support corrupt career politicians that behave in effect like medieval lords.
The idea that Republicans are seeking increased states' rights in good faith is contradicted my most available evidence. Not only have they fought legalizing weed federally, but right after the Roe v. Wade ruling we had Republican politicians advocating for a federal abortion ban[1].
Believing that these ruling will make things more democratic requires ignoring what Republican lawmakers both say and do.
A group of Republican lawmakers introduced a bill Monday to federally decriminalize and tax marijuana, adding an alternative to sweeping Democratic proposals for major marijuana reform and narrow GOP-backed efforts to deschedule the drug in the U.S.
> The States Reform Act has garnered attention as the first prominent bill sponsored by a House Republican to end the federal prohibition of marijuana, which could help give the proposal some political advantage in its efforts to secure bipartisan support. Congressional Democrats have previously introduced various marijuana legalization proposals, including the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, and currently have draft language for the Cannabis Administration and Opportunity (CAO) Act. At this time, however, many observers believe neither of the proposals being led by congressional Democrats will be able to secure the necessary Republican votes for passage in the Senate. Any marijuana legalization proposal would need to secure the support of at least 10 Senate Republicans in order to overcome a potential filibuster.
"A small group of Republicans has finally seen the light at a time they've no power to pass legislation, and it'll fail because of Republican opposition in the Senate" is not quite "The Republicans sponsored a bill".
Come on. The parties aren't monolithic, and the Democrats have a majority in Congress, but they can't pass anything either. Would you say the Democrats against legalization too?
Due to things like the electoral college, gerrymandering, vote suppression tactics, and senate representation to name just few, the US is not very democratic. Nor can these be fixed under current conditions because of the above list.
Senate representation is one thing. Requiring a supermajority to pass anything in an already unrepresentative house is just ridiculous, and absolutely does diminish the quality of "democracy" the US has. Especially considering the US house isn't particularly representative either, due to a combination of an absurdly low representative cap and gerrymandering.
The US is certainly more democratic than it was at its founding, when neither the president nor the Senate were entirely directly elected at all, but it's not even close to as democratic as most Americans appear to believe it is.
I assume you're just talking about the filibuster. What about the other super majority votes like ratifying treaties? Also, they could use budget reconciliation to pass a few things to bypass the filibuster.
I think many Americans have been calling it a democracy for shorthand and people forget that it's an adjective for "republic".
Imo, "it's not a democracy it's a republic" is a pretty empty statement, because there are no pure democracies (and they are likely to be completely impractical anyways). It seems to be a weird meme among Americans that hints at some kind of exceptionalism, but has very little in the way of practical implications.
For the most part, everyone in the world means approximately the same thing an American does when they say democracy ("a representative constitutional democracy, probably with some degree of regional federalism and bicameralism"). The US neither resembles a pure democracy or the republic the founders created at this point anyways, so it doesn't really matter. These terms are pretty fluid.
Pure democracy is basically never the goal anyways. It's not a bad thing for a system of government to be not entirely democratic, there do have to be checks on pure majoritarianism somehow, but the particulars of the US' democratic lacks seem to be both worse than most Americans imagine them to be, and also far more vestigial if not accidental than they ought to be (many were really there to help uphold slavery and/or prevent reconstruction from fully succeeding).
At this point, the net effect of the US' democratic failings is to create a tyranny of the minority, which can hardly be considered a better failure mode than a tyranny of the majority.
"At this point, the net effect of the US' democratic failings is to create a tyranny of the minority, which can hardly be considered a better failure mode than a tyranny of the majority."
Any source fir it only being tyranny of the minority? I see examples of tyranny of the majority too.
Tyranny of majority is an apt summation of the problems facing Nom white peoples but is not accurate when applied to religious groups seeking to impose their regressive theological practices on everyone else. That is in fact fascist and unconstitutional. Weaseling around these intents is a tired tactic of the radical right that they’ve been using for decades to sway the opinion of their poorly educated constituencies.
They do. The people get equal representation under the house. The states get equal representation under the senate. This is a feature to control populist movements as well as protect states' interests (which are also composed by the people, but this separate ensures that the culture of one set of state will not be imposed over the other set).
A person in Wyoming doesn't have equal representation in the house as a person in California, by quite a large margin. The house is not representative in practice.
As I said in another branch of this conversation, the use of the filibuster on nearly all bills of any significance (budgets and confirmations aside) in the Senate (and the chilling effect it's had on even bringing other bills to the floor) means that states are not represented equally either. The most obstructionist states have substantially more legislative power than the ones that want to actually pass bills. This is obviously more abstract, but it's pretty clear that in practice states are not equal in the senate.
The other states also have the power to filibuster things they don't like. This is feature not a bug. We want to fail open (liberty). The way to do that is placing safeguards that make it harder to pass laws, as they are generally imposing restrictions. The passage of any law will negatively affect some minority, the point is to make that group small and avoid straight partisanship via a modest supermajority.
Yes, there are some outliers and discrepancy in the number a representative represents. It probably should be adjusted.
I hope it's uncontroversial that, say, blocking a bill to ban slavery is not "failing open," for example, and the persistent effort to prevent slavery from being banned led to many failures in liberty?
When your main bulwark is making it hard to pass bills, all you've really done is make it so that the status quo is powerful. The status quo is not, by default, freedom.
Yes, point in time the status quo may not be the most free. The point is that starting from a more free point (the beginning) there were fewer laws that there are now. By having g that protection, how many additional restrictive laws have we prevented? The laws on the books are predominately restrictions, not freedoms/rights. So on a whole, it seems beneficial, even if there have been failings (we can say that about almost any institution).
> how many additional restrictive laws have we prevented
I mean, we will never know. Any answer to this question can only be speculation. I could as easily ask "how many expansions of freedom have we prevented?" And in this moment of political time I think there are at least a few. But that's also just speculation.
In theory it's supposed to be the constitution itself that prevents these abuses, not the crude instrument of legislative gridlock that prevents all change good or bad, especially in a moment like now or before the civil war where the two dominant political forces can't even see eye to eye on basic structures of power.
Much like, to bring it back to the original point, the Senate is already an unrepresentative body, it does not need the procedural filibuster (a unique creature among legislatures as it exists in the us Senate afaik) to make it one.
The speculation is supported by the numbers - restrictive laws far outnumber rights affirming laws, and thus it would on the net prevent more restrictions than freedoms. Especially since the structure of law is that are not unlawful tend to be legal.
The constitution is supposed to restrict what abuses? There's basically nothing preventing further restrictions in freedoms on many topics. Because the constitution is generally vague and conceptual, the courts have a lot of leeway to allow restrictions, even on well defined rights (rights are not absolute). There's little interest in calling a convention or otherwise amending the constitution it seems.
The senate is a representative body, for the states. The filibuster ensures that controversial bills pass with more than a simple majority. This is a feature which helps ensure that the affected minority is relatively smaller, protects states rights (it's up to the states if the feds dont regulate in moat cases), and help prevents waffling after every election that changes the simple majority.
The senate does not give people equal representation - regardless of the motivation for having it, this is objectively true.
You can say that you like a system that has this feature for states or it has certain other benefits and so on, but you can't say that it is equal representation because it is not.
As I said, the house gives people equal representation. A bill will not become law without passing the with through representation of the house. The only limit is that some things the house wants won't pass because the states don't agree.
If you truly want equal representation, then we have to go the direct democracy route since you will not have equal numbers of people under each representative. You also need to get rid of appointments by the executive (including rule making agencies), closed primaries, and provide universal voting including for felons and non-citizens.
So what is this argument for equal representation across the board? I don't see any benefit other than if you want populist movements to succeed based on the whims of the day and potentially at the expense of the minority rights (even more so than today).
The main point here is that state representation was necessary in order to create the country, and is likely necessary for the country to continue. I don't see any argument that supercedes this so far.
I understand how it works, and you agree that the senate does not provide equal representation for people, only the states. I'm not suggesting that the numbers for each representative be exactly the same because that's not achievable in practice. What I am saying is that the current system is much less democratic than it could be if either there was no senate or it had proportional representation. You may think that would lead to chaos, but I disagree.
It wouldn't lead to chaos. It could lead to states leaving the union if the senate were dissolved. It's happened in the past when states didn't want to be trampled and the divide seems large today.
But what is the objective benefit to removing the senate? The argument I'm hearing is just that it could be more democratic, but there are many changes that could make things more democratic. Some things are about fairness, like gerrymandering. But I don't see any benefit to removing the senate.
Laws like something that could curtail the worst of gerrymandering will never be passed because of the senate. The people that benefit from unequal and unfair representation will never vote to change them. Those people largely sit in the senate unequally representing the people that want positive change.
"Those people largely sit in the senate unequally representing the people that want positive change."
I thought we already covered that they represent states, not people.
By the way, what bill would they pass that would fix gerrymandering? I thought the states had the authority to draw their districts and it can be contentious as to what a good fix is.
And of course we have the same logic on the other side - that a party in power will do what they can to add to their power. We see that with laws about non-citizens voting (struck down), restoring/giving voring rights to groups that would disproportionately support them, and such.
> I thought we already covered that they represent states, not people.
We did, and that's the point.
> what bill would they pass that would fix gerrymandering? I thought the states had the authority to draw their districts and it can be contentious as to what a good fix is.
There is no bill, also my point. Also, it's only contentious to those who are deliberately attempting to gerrymander.
> that a party in power will do what they can to add to their power.
I agree with this part, its also my point; that is, undemocratic processes are self-perpetuating and self-strengthening.
> We see that with laws about non-citizens voting (struck down), restoring/giving voting rights to groups that would disproportionately support them, and such.
Interesting that that all your counter examples here are about giving people rights to vote. People having the right to vote is fundamental to democracy. Seems your view on democracy is of the 'only the right sort of people should be allowed to vote' variety, pun intended.
Then why are you misrepresenting it to mean something that it doesn't? Only one house is meant to represent people.
"Also, it's only contentious to those who are deliberately attempting to gerrymander."
Maybe for the general idea. But I can see implementation ideas being contentious. That's my point - the solutions are likely to contain biases, and there's going to be opposition to that.
"Interesting that that all your counter examples here are about giving people rights to vote. People having the right to vote is fundamental to democracy. Seems your view on democracy is of the 'only the right sort of people should be allowed to vote' variety, pun intended."
Please name a democracy that has unlimited voting rights. All democracies have some limits. Requiring that someone is a citizen is a damn low bar. Losing rights for felonies can be debated, but that's not too uncommon either. The purpose of those most basic restrictions is do that society does not become influenced by the criminal elements (you're banned from office too) or from outside influence. And guess what, those restrictions were democratically implemented. So please stop with the attacks and more righteous than thou attitude. Please state some argument beyond "fundamental".
>Then why are you misrepresenting it to mean something that it doesn't?
I didn't mispresent anything, I've been consistent and clear about my view of the senate.
>Please name a democracy that has unlimited voting rights.
It's not my position that voting rights should be unlimited. I was only pointing out that your own list of bad things were all about giving people who don't have a say about the government whose rules they must live by, a say in that government by vote.
>The purpose of those most basic restrictions is do that society does not become influenced by the criminal elements
This is historical laughable, the purpose of most restrictions is to limit the vote of marginalized groups, usually by race. For just one example, Step 1: Pass laws making weed a felony. Step 2: Focus all law enforcement efforts on marginalized groups smoking weed but let the kids in suburbs and college dorms smoke all they want. Step 3: Harshly punish marginalized groups by making them felons. Step 4: Strip them of the right to vote.
No you don’t understand, being more democratic in the abstract is more important than actual rights being stripped away or retaining the bare minimum environmental regulations on companies that are destroying the planet.
It’s sad how the flimsiest well-actuallys carry so much weight around here. Anyone making arguments around recent decisions being democratic has their head buried in the sand about how blatantly undemocratic the US has been since its inception.
Processes were followed and have been for generations. SCOTUS is just flipping the table over now for the benefit of biggest polluting industries, not the citizens, country, or the rule of law.
It’s only “clear” for people who accept paper-thin legal logic from a court with an obvious agenda. It’s only clear if you’re willing to slide down the slippery slope of the court stripping authority from all federal agencies they don’t like with the logic that the legislature needs to codify every email sent by an agency.
If you don’t like the EPA just say so, but please stop pretending like the Supreme Court is some real arbiter of logic and constitutionality. It has always been (even during liberal courts) an unelected political institution that justifies huge legislative changes with high-minded philosophical hand waving. Occasionally they throw in civil rights decisions for good PR with their aligned base, but even that’s on the chopping block with the current court.
The majority of people don’t want to allow abortions at 36 weeks, but they also don’t want abortions completely banned.
So there is a democratic debate to be had about where in the middle the non extreme two sides could meet. (In Europe there is no debate about abortion and most countries allow it to 12 weeks).
Better to have a debate and both sides compromise than some court deciding on one of the most extreme views. The Supreme Court didn’t ban abortion, they did however allow it to 36 weeks for decades.
What they did do last week is say: hey guys, it’s a federal democracy, why don’t you fucking debate it and legislate it somehow where both sides can agree, as is normal with divisive issues in a democracy
Even RBG said that Roe v Wade was on shaky ground as a legal precedent.
And what people don’t realize is that if Roe v Wade wasn’t overturn the next ruling discussed was allowing further restrictions by states, further eroding the precedent.
The alternative was just kicking the can down the road until the next challenge.
I understand your point, but at the same time, I don't want the same "it is like a series of tubes" guys mandating some airplane technology pushed by the highest campaign contribution either.
I have a degree in computer science and a couple decades of experience with software development for, and deployment on, the internet.
I think the metaphor of comparing internet bandwidth to pipes/tubes carrying water is perfectly apt. It seems like a very simple, direct and effective way to describe issues of bandwidth, connectivity, congestion and overall infrastructure.
I've never quite understood why we all pretended like that was a bad analogy. I guess just because it came out of the mouth of an old, white Republican.
It's because his delivery of that analogy came across as unhinged and shouty, and he posited that emails from his staff took days to arrive because of Netflix.
I don't think this is correct. Congress can definitely delegate its power, they are just saying that Congress didn't delegate the power the EPA is trying to use in this case.
From the final paragraph of the opinion:
"But it is not plausible that Congress gave 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."
So it seems that Congress can still give the EPA a more clear delegation that they have this power.
How do you write an entire opinion about delegation without mentioning Chevron? As the dissent points out, that delegation is inherently required to do the EPA's job and the court has previously accepted their technical and policy expertise in this area.
You would think they would have reversed Chevron, or distinguished it. But note, I've not read this decision yet, and I'm taking your word for their not mentioning Chevron.
I wonder if the conservative majority will use these recent decisions as precedent to overturn Chevron in what would be another shocking and shameless display of legislating from the bench.
I read this differently (and am a former lawyer who worked on administrative law). This is about the "major questions doctrine", which involves a subset of administrative actions. It's not about whether administrative agencies can do anything whatsoever.
> Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.
The reasoning for this is that:
> We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies
That is silly hyperbolic overreaction. The court literally upheld the EPA regulating greenhouse gasses at the point of creation. It upheld the specific regulations how coal was burned. All it said was the EPA wasn't empowered to move into grid management schemes. If congress wants to grant them that power, it can.
I didn't see the claim that they can't delegate. The issue I saw discussed is whether or not a specific power was delegated. I don't see rhem invalidating all agency regulations. I do see them requiring better definitions to support that regulation. (Eg C02 was not considered a pollutant under the original grant of power, so the court doesn't want to interpret it to be inclusive).
I agree with "congress cannot delegate it's powers" to a certain extent.
Negative example: The BATF has a splendid history of literally doing nothing except putting it's critics behind bars, while solving 0 actual crime and preventing any sort of mass tradgedies.
Positive example: The FAA has done an incredible job making air-travel safer than car travel. I have a feeling that a lot of the higher-ups are former engineers and have been able to put politics and red/blue crap aside for a common mission.
Mixed example: The FCC has done a great job on spectrum allocation. They've done a shitty job when on broadband and content regulation, with it quickly becoming politicalized and more concern about red/blue.
Good example: The FDA has done a great job in regulating the industry for their namesake: food and drugs. We have unprecedented levels of safety in both despite not having a complete knowledge of how all drugs work (biology is just complex with a lot of hidden downstream after-effects).
Poor example: The NRC has pretty much just said "No" to fucking everything in nuclear. No progress has been made. We should have 3-5 reactors (on average) in every state. Instead we're still running 50 year old designs (not _necessarily bad_ but not great either) when we could have Generation III+ with passive failure modes.
That brings me to the EPA. I think they've done a lot of good: energy efficiency ultimately benefits the consumer in nearly every case. I have an air conditioner that kicks out a splendid 58degree air stream in the summer heat and extraordinarily low energy consumption levels. The EPA has successfully sued countless corporations and created superfund sights when they just dump industrial waste without a plan to handle it.
Unfortunately, as red/blue politics get involved in an agency, everyone loses. And the finger pointing begins. As such, the only "way out" may be to say delegate it to Congress. I'm not sure where we go from here.
> The FDA has done a great job in regulating the industry for their namesake: food and drugs.
The Sackler Family/Purdue Pharma and Oxycontin has entered the chat
It's hard to see what the FDA (didn't) do in that case as anything but complete corruption. Allowing a new label for this new untested drug and then the head left to go work for Purdue shortly after? Revolving door.
I'm not sure whether "good" is better or worse than "positive", but the FDA is definitely closer to "mixed" than the FAA. I'm generally very pro-FDA for the reasons you listed, and argue against the libertarians who want to abolish it. However, there's lots of legitimate criticisms about how it's frequently too conservative in allowing trials or approval for potentially life-saving medication, or approving medications and supplements that are considered safe and commonly-used by other countries.
Scott Alexander of SSC/ACX has many[1][2][3], many[4][5][6] posts pointing out instances in which the FDA's arguable-excessive roadblocks have failed US healthcare patients, coming from his experience as a professional psychiatrist.
> Positive example: The FAA has done an incredible job making air-travel safer than car travel. I have a feeling that a lot of the higher-ups are former engineers and have been able to put politics and red/blue crap aside for a common mission.
It wasn't just a failure, and it wasn't an oversight -- the FAA simply rubberstamped anything Boeing gave it, and it wouldn't surprise anyone if there is more to the story. It was a colossal failure that led to a complete loss of trust in the FAA. The FAA went from being an agency whose expertise we lent to the rest of the world to... being just one more captured domestic regulator. I bet the Europeans will lead the investigation of the next big accident outside the U.S., as well they should.
The EPA was created to empower experts to make informed decisions with the goal of benefiting the public good. The science of regulating pollutants is hard, and neither our representatives nor the voters who elect them and ultimately hold them accountable should be expected to develop that expertise.
The vested interests who benefit from the fossil fuel industry control the flow of information to our representatives through lobbyists, and to the public through advertising. Panels of experts in their field are harder to influence.
Major questions doctrine. They ruled that the current law does not empower EPA to require producers to shift generation to different methods (e.g. natural gas, renewables), and that if Congress had meant for the law to do that, they would have written it explicitly.
Congress can still pass a law empowering EPA to regulate greenhouse gas emissions.
> Congress can still pass a law empowering EPA to regulate greenhouse gas emissions.
Congress gave the EPA broad discretion that it could have revoked -- using your argument -- at any moment. This issue has been bouncing around for over a decade, and Congress has systematically declined to do so.
I think the argument is that the EPA considered itself to have broad discretion and congress was silent on the matter, and more generally do the executive functions have whatever discretion they assume to have unless congress specifically limits them? Or rather, do they have only the permit that congress gives them?
That's a horrible argument. The Executive branch should never had default allow permissions for anything. The amount of mental gymnastic many of our current regulator bodies have used to claim more authority is already obscene.
No they can't. I mean, legally they have the authority to do so. But congress is pretty broken. By the time a congress is elected that can effectively legislate a solution to climate change, it will be too late.
Giving a broken legislative body the sole responsibility of literally saving the world is a really, really dumb idea.
Do y'all not consider how the EPA came into being in the first place? It exists because a previous congress did do something and delegated their authority for a very specific reason. Like it was a joint effort between Republicans and Democrats even.
What this Supreme Court has decided to do is say that what they did doesn't matter, knowing that the current makeup in congress is in gridlock due to how modern day Republicans behave. Like the dissent was posted here. Congress explicitly empowered the EPA to work towards the best system of emission reduction.
Congress has to be explicit with what powers they delegate. They can’t just say “do whatever you want to fix this problem”. Neither does it say that in the law. It’s not the job of SCOTUS to give you the outcome you want. It’s to rule on what the law does say and is constitutionally acceptable.
Congress granted the EPA power to regulate air pollution. CO2 and methane are harmful pollutants that cause a greenhouse effect, and the EPA was granted the authority to address this.
Our activist extremely biased Supreme Court has several members who are part of a political advocacy operation called the federalist society and ensures that members get Supreme Court placement specifically to achieve federalist society goals.
Nothing about this is secret.
Nothing about this is acceptable
The problem is that our federal legislative system is heavily tilted in favor of Republicans despite them being firmly a minority party. This is most apparent in the Senate, but gerrymandering gives them an edge in the House too.
So when you're talking about consensus, the country has it. There's consensus on immigration, gun control, and abortion. It's just that Republicans prevent us from acting on it.
Consensus doesn’t just mean 51%. It means general agreement. If you have 100 people in a room, 51 people are in favor of something and the other 49 are not, is that your “consensus”? Prior to the US each of the states were their own sovereign entities. Why enter the US (or stay in it) if you are going to be ruled against your will? The states agreed to give up some of their power and joined under the explicit conditions of the senate that they would have an equal say.
A majority of Americans support the right to choose [1] (61%), a path to amnesty for undocumented persons [2] (60%), restrictions on firearm purchase and ownership [3] (> 64%), moving off of fossil fuels and treating climate change like the threat it is [4] (76%), a wealth tax on people with a net worth of over $50m [5] (56%), the expanded voting rights in HR 1 [6] (>61%), etc. etc. etc.
These are big majorities, and I'd wager most Americans don't think this stuff is broadly popular.
The key word here is "sufficient consensus." Your judgement of sufficiency is a personal opinion.
I could, for example, define "sufficient consensus" as requiring that all laws require a 90% supermajority in the Senate. Or I could reduce this to 50% of the Senate. Alternatively I could reform Congress so that lawmaking requires voting totals representing 50% of the population.
Each of these is one possible version of "sufficient consensus", and still none of them actually matches the version we actually have. What is clear is that the sclerotic nature of today's Congress is problematic, and it's doing a great deal to undermine faith in our democratic system.
It might be obvious, but I feel like it's lost due to partisan motivated reasoning. eg. when your preferred party doesn't control the senate, then the filibusterer is an important part part of democracy that forces widespread consensus, but when your party does control the senate the filibusterer is a undemocratic tactic used by the minority to obstruct the majority.
Consider, for example, how the FDA operates. They have a broad mandate to keep food clean and drugs safe. They don't have an explicit mandate of "you must only regulate tylenol and aspirin, we need to pass a law for new drugs each time they come up."
This ruling finds the EPA, who has the mandate to keep pollutants out of the air, can't determine that CO2 is a pollutant. Why is that? The 2016 clean air act specifically gave them the power to regulate air pollutants.
The only answer is political activism. There is no difference between the FDA's broad mandate and the EPA's broad mandate.
I recommend reading the dissent on this case. It makes it absolutely clear that this is an EPA power. The conservatives couldn't get new laws passed repealing the EPA, so instead they packed the court with political activists so they could make law from the bench.
The rise of China is testing and will continue to test this assumption. The Chinese government does not require consensus. It can build 40,000 kilometers of high speed rail in just a few years. It can pull hundreds of millions from poverty. It can shut down entire companies and industries overnight (e.g. private school tutoring), jail corrupt corporate executives, and in general coerce compliance to any law.
Do you know how many school teachers in China must buy supplies for their students with their own money? Zero.
Do you know how many Chinese ambassadorships are left vacant because of political bickering? Zero.
I am not a shill for the Chinese Communist Party, Xi Jinping, or the ideology of the Chinese political system, but I increasingly am a shill for the ruthless efficiency of the Chinese government.
China is one extreme. The other extreme is the United States, which isn't able to accomplish anything, good or bad. All the US does anymore is renaming post offices, mailing social security checks, funding the army, and tax stuff. Tax cuts, tax credits, tax rebates, tax incentives.
China may well supersede the United States in the future, despite its treatment of minorities.
They also can't enforce building codes leading to fires that kill a lot of people, have no real food safety and dramatically impinge on any sense of individual rights.
Unlikely. Republicans were only barely willing to work with democrats after the latest in a long string of people gunning down school children. Since hatred of the environment is practically a party platform, they certainly aren't going to cooperate on giving the EPA anything ever.
Why do you see a blow to the chevron deference doctrine as a good thing?
I'd say that the doctrine properly tries to keep the supreme court, the least democratically responsible branch of US federal government, from being the most powerful of the three branches of government.
The buerocrats take their orders from the president, and if they don't can be overruled and fired by the president, who is elected by the people every 4 years. That's a pretty big difference, no?
The "lifelong bureaucrats" are typically (but not always, see the CDC) policy and subject matter experts.
Chevron deference's main purpose is to free Congress from writing exhaustive laws. If the executive branch does something Congress doesn't like, they can change the law and make it more specific. Of course Congress does almost nothing, so when you say it has to take legislative action to regulate something, what you're effectively doing is deregulating it.
This decision follows more from the Court where they pick and choose what they doom in this way based on their personal politics, contrary to precedent and reliance interests.
We shouldn't think too hard about what this Court does; it's a nakedly ideological power grab that's the endgame of a generation long effort by Conservatives to control the US through the court as they slide further and further into permanent minority status. Future generations will look back on this era as one of infamy.
> The "lifelong bureaucrats" are typically (but not always, see the CDC) policy and subject matter experts.
We really, really needed one of those groups of unelected bureaucrats to be policy and subject matter experts, and they weren't. But don't worry, all the others we haven't actually checked are!
I'll try and read into your low-effort dismissal here a critique of my singling out the CDC and explain further:
The CDC is a relatively unique case of an institution that was really gutted by a mistake decades ago (the swine flu vaccine in the late 70s [0]) and then got some pretty bad Trump-nominated leadership [1] [2]). Elections matter, it turns out.
What agency would you hold up as an example of competence, sanity and political independence, then?
The FAA's got egg on its face from the whole 737-Max situation, the FDA is approving vaccines for under-5 year olds despite no evidence of benefit (and has had a few reviewers resign in protest after the same set of vaccines were approved for other age demographics), I'd bet dollars to donuts that people are going to be mightily unhappy with the Treasury in 6 months, the DOJ has all-but-eliminated the jury trial while providing generally substandard prisons, I've heard many things about the VA but I don't recall a single positive thing, and there's a ton of things that could be said of the DEA/ATF/FBI/DHS gang but very few of them are positive.
Your post is a couple of pot shots at departments that do thousands of things every day and some unsubstantiated claims. Here's guest piece by those two FDA staffers who resigned explaining their disagreement with the administration [0]; the headline is "We don't need universal booster shots. We need to reach the unvaccinated." It's a pretty good piece written by people who sound--at least to me--like policy and subject matter experts. The VA is the largest socialized health care system in the world. Etc. etc.
---
I will say a couple of things to try and reach an agreement here. The first is that our gov't is pretty corrupt, even the executive branch (remember the CDC pulling down testing/masking requirements for flying around the holidays last year?) and it's pretty clear to everyone who looks at it. I'll defend the career civil servants, but the political appointees? Generally nah.
The second is that the US press is basically junk. Their incentives are so screwy that even people who want to be fair and rigorous are forced out in favor of profiteers, which creates an awful dynamic amongst viewers and readers. For example, this article is "Hillary Clinton's emails got as much front-page coverage in 6 days as policy did in 69" [1]. This one says NBC Nightly News spent 31 minutes on emails and 8 minutes on issues [2]. What were readers/viewers supposed to think? Has literally anything been covered so strenuously and consistently? It got more air time than actual terrorism.
How do you see the Supreme Court as being more democratically responsible than the administrative personel of the executive branch?
To me, it seems clear that the "administrative state" is overseen by the president, who can overrule them and fire individual people, and the president is elected by the people every four years, and that makes the executive branch more democratically responsible than the supreme court, which is not elected by the people, and who serve for life with no democratic accountability.
But I'm open to hearing your argument for how the supreme court is more democratically responsible than the offices of the executive branch! Maybe we don't mean the same thing by "democratically responsible".
> Supreme Court can just ignore its own precedents
I’m not a fan of the current Court, but stare decisis has never been binding. Landmark rulings are landmarks because the create or break precedent. Courts have been doing that since there were courts.
Stare decides bound Casey, at least. It's never before been ignored when it established a new individual right (Dobbs overturns precedent to remove a right, which has never been done before). This really can't be minimized as "Courts gonna Court".
I haven't read the opinion in detail but it doesn't appear they touched Chevron, merely ruling this particular case falls under the preexisting major questions doctrine/exception to Chevron.
If you read the dissent they seem to be claiming the majority opinion greatly expands the circumstances in which the major questions exception applies. Which would be a big hit to Chevron making it apply in far fewer cases.
This is a decent definition: "administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer." The ruling basically undermines the previous notion of the judiciary deferring to an administrative agency, because it just didn't, therefore forcing the legislature to be more explicit in its desires.
Nobody in the comments is saying that the Supreme Court is wrong in the sense that the logic doesn’t follow. Of course it’s nuanced and up to interpretation, that’s why most decisions are split — and usually split on “conservative (do what I say) and liberal (do what I mean).
The reason people are mad is because the court is relitigating long settled cases which breaks the main principle of the court which is don’t break userspace without damn good reason. We know they think the decisions were made incorrectly but the bar of “this is crucially important we fix” I don’t think it is being met. Instead it’s at best tone deaf to the real life effects of their decisions and more likely motivated to achieve specific partisan legislative outcomes.
This is one of the most reasonable comments I’ve read today, and yet it’s grayed out.
That’s not acceptable.
HN is being taken over by bullies and I’m tired of not even have my basic comment voting rights.
Most decisions are actually not split. It's just that the controversial ones get all the press. No one is gonna get fired up about 9-0 or 8-1 decisions.
I'm curious about this "do what I say" vs "do what I mean" partisan split. I can see how this particular case clearly applies, but you have any other examples?
>The reason people are mad is because the court is relitigating long settled cases which breaks the main principle of the court
A bad decision is a bad decision no matter how long it's been in effect. If anything, following "precedent" is what got us into this mess in the first place. We could have ripped the bandaid off decades ago on abortion and fixed it then. Now it's going to be much more messy.
> A bad decision is a bad decision no matter how long it's been in effect. If anything, following "precedent" is what got us into this mess in the first place. We could have ripped the bandaid off decades ago on abortion and fixed it then. Now it's going to be much more messy.
IMHO, what actually got us in this mess was the Supreme Court putting itself into a situation where it's regularly making momentous political decisions, rather that resolving finer points of law, resolving little corner cases, etc. It might be expedient to use its power to set social and economic policy, but that doesn't mean it's right.
I truly wish more people were legally literate, and considering how much intellectual overlap there is between software engineering and legal writing I would have expected better from the HN crowd, but so far all I see is a lot of talking point parroting about partisanship from those who clearly haven't even tried to read the rulings.
Seriously, if just a fraction of "intellectuals" in other fields took some time to read the past 50-odd years worth of Supreme Court rulings, there wouldn't be all this pointless bickering over basic facts. If anything, the Warren/Burger courts were egregious in making up constitutional rights out of thin air based on their moral beliefs, and not the letter of the law. It's a shame that it takes a far-right Supreme Court for people to finally understand that it's Congress's job to pass new laws, not the judiciary branch.
This place is more unfriendly, to be honest, as we get more knives in the back than frontal assaults, which are fairly easy to fend off or disconnect from.
I can at least up and down vote comments on Reddit.
Here I just get greyed out and can’t hit back
I really don't like having this unelected councils of wizards who get wield god-like "authority"-- it feels a bit gross in a democracy.
I 'get it' w/ respect BrownvBoard, Miranda, etc, but at least in my lifetime the court hasn't done much to expand or protect my rights. Greatest hits from them are weird election cases (Florida 2000) making it easier for really shadowy/fucked organizations to plow $$$ into elections.
If these folks are indeed just umpires & good old legal "scholars" who are there to call balls & strikes, why are hundreds of millions dollars spent promoting + grooming these individuals?
Going forward I'm very much in favor of subtle "judicial humiliation"-- across the board de-sanctify this institution
Congress delegated their authority to the EPA. Congress is empowered to retain that authority and they're empowered to overrule any EPA regulation they disagree with. Congress retains all the power.
When it comes to the Supreme Court - that's it. Congress can't do anything about Supreme Court rulings. Your comparison of the EPA to the Supreme Court is misguided.
>>Congress can't do anything about Supreme Court rulings.
Actually, they can, that is the whole point - congress has the power to pass laws - SC does not. That is exactly what the SC just told congress to do - their job.
If Congress is adhering to their oath and acting in good faith then they may not pass laws that violate the Constitution. The Supreme Court determines what the Constitution does or doesn't say, which impacts the laws Congress may or may not pass. Putting this together we conclude Congress can't do anything about Supreme Court rulings.
Congress can’t just say “do whatever you want to fix X problem”. They have to be explicit with what powers they delegate to the executive branch and what they are permitted to do. Otherwise the law is plain unconstitutional since breaks the fundamental separation of powers. The purpose of SCOTUS is not to decide cases based on the desired outcome. It’s to decide based on what the law actually says, not what it should say.
It is happening at the state level too. In Wisconsin, the gerrymandered (google it for background on Wisconsin) legislature has chosen to not conduct hearings on governor appointees, with the result that holdovers from prior administrations can remain in office indefinitely.
""(T)he expiration of Prehn's term on the DNR Board does not create a vacancy. Prehn lawfully retains his position on the DNR Board as a holdover," wrote Chief Justice Annette Ziegler for the majority. "Therefore, the Governor cannot make a provisional appointment to replace Prehn." [1]
We don't have time for that. By the time a congress is elected that is willing to make laws that curb emissions, it will be too late. So much damage will already have been done.
Pushing responsibility to literally save the world onto a broken legislative body is idiotic.
For so long as the American people respect the US Supreme Court, their laws can be nullified on the say-so of this Court and are thus worthless. That's the underlying point of this whole suite of rulings.
Congress can write laws, the Court can decide they don't mean what you thought they mean, and, apparently, you will cheerfully conclude that the Court is wise and you're foolish, perhaps only realising the danger when it is too late.
So far this court seems to be largely giving more power to voters and their representatives to create law, limiting their own power (Dobbs), and giving power to the states.
> The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.
Seems pretty clear: it's for the states to legislate, not Congress, notwithstanding this:
> The Court overrules those decisions and returns that authority to the people and their elected representatives.
which clearly does not refer to Congress given the preceding.
That said, state laws regarding abortion almost certainly don't reach a) federal land within those states, b) interstate travel. Congress can easily fund abortion clinics on federal lands, and it can fund travel by pregnant women seeking abortions. So in a way, you're not wrong.
> This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article VI, Clause 2, also known as the Supremacy Clause[0].
You’re simply wrong about this friend. Congress could make the Roe standard the law of the entire US tomorrow. This is why you see Biden and others asking them to do just that.
I'm dead certain Congress couldn't before Roe, between Roe and Dobbs, or after Dobbs, not w/o a Constitutional amendment. That much is quite clear. I quoted from Dobbs, and as to Roe, Roe declared a constitutional right, which means Congress couldn't do anything about it w/o a constitutional amendment. If federal statute could compete, then Congress would have made Roe law long ago in any one of the many sessions in which there were vast majorities for it in both houses and in the White House. But no, it requires an amendment, which is why it's never happened -- it's hard to get 2/3rds majorities for anything, let alone controversial things.
So you're saying you're "dead certain" that Barbara Boxer, Hillary Clinton, Dianne Feinstein, etc. misunderstand what kinds of laws are and are not constitutional? Where does such a high degree of confidence come from?
I really don't understand the decision. In my mental model the executive branch exists to implement the laws that Congress passes, Congress deliberately leaves leeway in laws to give the executive branch flexibility, this flexibility has been previously affirmed by the court decision Chevron v. NRDC.
This decision seems to give more power to Congress but on net I think it makes the laws Congress passes weaker because it strips away the effectiveness of the implementation.
The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.
If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.
Congress doesn't remotely have the bandwidth to explicitly write out and decide all the little rules it takes to regulate the country, even if they had a clue what they were doing in each case
It's pretty clearly designed to dismantle the federal regulatory apparatus
Then it should explicitly delegate that to the executive branch where applicable, as it does for other things. You don’t just throw away separation of powers because it’s convenient.
Congress has plenty of time and money. They are too busy jockeying for votes to do anything. The problem with congress is that they are too focused on winning elections instead of doing the GD job. I view this as yet another reason why we need strict term limits for members of congress. There are too many leeches.
Typical staff sizes for congresscritters seem to be about 60 people. I managed to get some salary data on them, and $5M total per congresscritter seems to be reasonable [0]. So, I dunno, double that cost for ancillary expenses and the like, you get ~$10M per congresscritter. Multiply that all out and you have ~26,000 people and ~$4.4B total.
The total spending of the whole US federal government is ~$4T with ~4M people employed. So, ~1000x the budget and ~150x the staff of all of congress and their staffers.
Sure, yeah, you can double or 10x the staff of congress, even up the budgets by 100x. Maybe only 1/10th of the budget is actually needed. Maybe you can get by with giggling the staffer pay ratios. Whatever. You're still really short.
Oh, and you still have to have the staff that was doing the original jobs of the congresscritter.
Unless you completely rejigger how congress works to the tune of a ~100x increase in budget and staff[1], there's just no way congress can take over that job.
[0] There's not really a database on this that I found. I just took a random sample of 35 congresscritters and then googled for their staff sizes and salaries. It's not definitive and it varies a fair amount, but 60 seems to be a high yet good estimate.
[1] Imagine trying to grow any business or enterprise by 100x. It would take a very very long time for the dust to settle. Let alone working all the kinks out of the system that you're creating from whole cloth. And that's a new system. You'd also have the fight with the old system when trying to do this between congress and the exec. branch. The likelihood of it occurring in any kind of reasonable timeline and in any kind of reasonable effectiveness is precisely 0.
Government works off of law, not merely intentions. Intentions can change. Laws are documented. otherwise what’s the keep of random police officer from deciding that they have the ability to regulate the applications on my phone? After all, they’re just keeping me safe.
Legislation often deliberately leaves interpretation of statutes to the agencies implementing the laws. The legislation can just say "The parks department shall keep the park safe and well-maintained," without specifying what 'safe' means, or how often they collect the trash.
Yes, a functioning government depends on parties acting in good faith and assumes everyone is working for the common good, not always achievable when vast sums of money are in play. This case is a great example.
Yes, the "minority" party that's currently 2 points ahead on the generic Congressional ballot (https://projects.fivethirtyeight.com/polls/generic-ballot/), won 1.5 million more votes than Democrats in the 2016 House elections, and is on pace to win several million more votes than Democrats in the 2022 House elections. That's an interesting definition of "minority" you have there?
If we had a parliamentary system, I would agree with you. But the actual on the ground reality is Congress does not represent the actual will of the people due to malaportionment.
The main implication here is that the policy making decision tree needs to change.
Whereas before it was:
Do we have the political will to enact this from sea to shining sea via Federal legislation?
-> YES/NO
-> Can we enact this from sea to shining sea via fiat through an existing administrative agency?
-> YES/NO
-> Can we enact this from sea to shining sea via the SCOTUS?
-> YES/NO
-> Can we enact this policy gradually via the States?
-> YES/NO
Now it is:
Do we have the political will to enact this policy from sea to shining sea via Federal legislation?
-> YES/NO
-> Can we enact this policy gradually via the States?
-> YES/NO
The States themselves don't have the "malapportionment" problem, and insofar as Congress does, it's because the system was always set up for change to occur from the bottom-up, not the top-down. The EU refers to this as subsidiarity [https://en.wikipedia.org/wiki/Subsidiarity_(European_Union)]. Congress is structured in exactly the same way as the EU, as well as other federations like Australia and Switzerland.
Justin Trudeau became Prime Minister of Canada last year despite his party winning almost 200,000 fewer votes than Conservatives. Does that mean that Canada's Parliament "does not represent the actual will of the people?"
If 'we had a parliamentary system" Biden would be shown the door next year when Republicans again win a majority of not only House seats, but total votes for House candidates.
Looking at the results for only the two largest parties when there are five parties in Canada's Parliament and none has an outright majority of seats is completely misleading.
Trudeau can only govern with the support of the NDP. Liberals plus NDP got a majority of the popular vote[1].
> The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.
> If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.
Huh? Remember Ajit Pai? It hasn't been that long.
It's profoundly anti-democratic for major decisions to be made by unelected, unaccountable technocrats (with a comment period) than by actual elected representatives who can at least theoretically be held accountable through elections.
IMHO, the solution to this is probably just to pass a law that authorizes this regulation that simultaneously pays off the states who object so they feel it's an overall good deal for them (e.g. fund a nuclear plant and a bunch of new infrastructure for each of them).
Ajit Pai got kicked out when the administration changed! Exactly how it should be!
They're not unaccountable, the president can dismiss them. Just like Trump fired Janet Yellen, and SCOTUS already ruled the structure of CFPB where removal for cause was required is unconstitutional.
The idea congress is "democratic" is a huge joke. There's a reason why the House of Lords has essentially no power any more. Let alone the literal open corruption campaign finance is.
Everything you say may or may not be true, but it doesn’t address the point of the ruling or what's under debate. If you don’t believe that the Congress is representative of the will of the people, your issues are not with this or that law or SCOTUS ruling, but with the fundamental structures of the American republic.
> Biden is elected. He appoints experts. Experts craft regulations. When regulations screw up, Biden gets elected out. Experts get kicked out.
So just elect a king, then? There's a pretty strict division of powers in the US, and for good reason. Congress just needs to do its job and pass some legislation.
> Jesus, can you put aside the taking points and just think for yourself? Obviously no one is unaccountable. This is not some tin pot dictatorship like Fox is telling you to pretend it is.
I can tell you I am thinking for myself, at least as much as you probably are. Making an accusation like you have is also, frankly, against the site guidelines and not conductive to discussion.
Congress is not going to do it's job in this political climate and we don't have the luxury of new found proceduralism when so much is at stake.
"Just elect a king then?"
No, because that would be creating unaccountability where I just demonstrated it already exists. How is putting everyone's future in the hands of Joe Minchin and Mitch McConnell an improvement on that?
And again with the hyperbole. Instead of kings, let's stay in reality - the accountability issue you speak of is a red herring. Environment degradation presents an existential danger. Current legal and regulatory procedures are already slow in addressing it but they could have worked (for everyone except polluting industries and their shills). Scientist agree that faster action is required. Legislative obstructionism and a new appetite for legal originalism are just more obstacles that we can't afford.
All these points can be defended. You're just repeating ungrounded, abstract, Fox News, boogie man talking points without demonstrating any of them. I apologise if I caused offense, but saying that's thoughtless is not an accusation.
Congress won't act, the Executive isn't permitted to do much even with what they were given by Congress, and the People are powerless to do anything unless 100% of them vote, which never happens, and even then may be overruled in many places.
Under a legal constitutional system, when Congress "won't act", the laws stay the same as they were.
The Executive branch taking unilateral action beyond its authority because the Legislative branch "won't act" scares me even more, for the long-term health of our democracy, than laws staying the same as they are now for a bit longer.
> People are powerless to do anything unless 100% of them vote
I'm not following this logic? Why do we need 100% of people to vote?
I assume you mean to "oust ineffective elected officials" but I suspect that there are many people that don't vote because they are "happy" and don't feel at risk of their desired official being outed. But again, I might be off base. Hoping you can clarify more of what you meant.
Most of the public cares about climate change and wants the government to do something. The overwhelming majority of the public supports abortion in some form or other. If they actually voted maybe we could change things, but lots of people just don't vote.
Having participated in several cycles of political organizing, the actual ground game is Get Out The Vote (GOTV): not trying to get people to change their minds, but getting people to just get off their asses.
> Most of the public cares about climate change and wants the government to do something
Most of the public cares about climate change and wants the government to do something so long as it doesn't cost them anything (Or more precisely, more than 10 $/mo)[0]. Or you can just see the consternation about gas prices right now to predict how well any climate change related regulation that actually materially affected carbon production would go.
Many people don’t vote because they’re skeptical that their vote can affect anything — either because they’re in a definite minority in their legislatures or they think elections are bought, in a “changing minds” sense.
It's still very much an open question as to whether congress is allowed to abdicate its power of rule making to the executive branch. The constitution seems to imply that the answer is "no," but the past interpretations of it say "yes." Chevron is a younger precedent than Roe.
> It's still very much an open question as to whether congress is allowed to abdicate its power of rule making to the executive branch. The constitution seems to imply that the answer is "no," but the past interpretations of it say "yes." Chevron is a younger precedent than Roe.
You say abdicate. Not true.
Congress is obviously empowered to delegate.
Please be specific. Who (written where?) thinks this is an open question? Please cite evidence of this.
This is also a common theme of many recent cases. Examples include: American Hospital Association v. Becerra, SEC vs Cochran, SEC vs Jarkesky, Gundy vs United States.
It is not clear that Congress can actually "delegate" the power to write laws.
Nobody denies that "Congress deliberately leaves leeway in laws to give the executive branch flexibility."
The whole point of this case is that Congress gave the EPA leeway to decide standards and scrubbing technologies for toxic pollutants, and the EPA stretched that leeway far beyond what Congress intended to address a completely different problem involving a non-toxic alleged pollutant.
The court has already ruled in Chevron v. NRDC that executive agencies have deference in interpretation of statues if Congress has not explicitly granted that power. The Clean Air act was passed in 1970 to ensure air quality, through science and the advancement of our understanding the EPA has identified CO2 as a toxic pollutant. I don't understand why we need an updated law by Congress when the EPA is much closer to the issue.
That limiting the administrative state is far from a monumental changing of the rules. Nobody is challenging the administrative state per se. The major doctrines principle is just being expanded, which limits Chevron, something that only came into being a few decades ago.
That's an OK summary of FedSoc talking points, but you're missing some of the barbs. Might want to try again.
The effective reuslt of the non-delegation doctrine is that, when Republicans do not like a policy outcome, Congress is required to employ a time machine to give explicit instructions to an agency decades ahead of time.
Quibble all you like, it has been that way for living memory, and reversing this is going to cause an enormous amount of chaos, because the modern state is built on these assumptions.
This is not some minor change, you're going to throw the federal government into chaos. I know that's the goal for a lot of people, but they should have the courage to admit that.
Discussions about the EPA seem to have to magical ability to make people forget that gems like the DEA and DHS exist. Heck, until recently the FCC was headed by a corporate shill.
Avoiding chaos is not a valid reason for allowing a legal injustice to persist even one day longer. I support legal mandates to reduce emissions, but it needs to be done the right way as an Act of Congress, not by unelected bureaucrats creatively reinterpreting a law to suit their political goals.
Please don't cross into flamewar like this. It's not what this site is for, and it destroys what it is for.
Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.
The dissent indicates the power is already explicitly granted in the EPA statute plain as day. It really isn't clear to me what language would satisfy the majority.
"The EPA may regulate emissions that contribute to global climate change" would also do the trick.
These laws are all quite old, many pre-date the EPA even and are from the 1950s and 1960s. They were clearly written for toxic pollutants, which carbon is not.
Let me ask you plainly: are you a lawyer? You seem well informed, but not lawyerly. I feel like you have good theoretical knowledge of how this should work in an ideal world, but not as much understanding of how it works in practice.
Why do you propose every single atom needs to be explicitly listed? 42 USC 7411 does grant EPA the power to determine what emissions need regulating, and how to best regulate them.
The decision looks simple and correct to me, even with only reading from the very left biased BBC article.
Despite your very right biased comment, I don't buy the idea that congress needs to write legislation down to specific policy details that might come up with every minute aspect of what is intending to be legislated. I don't think elected politicians are capable of being knowledgeable enough to give specific guidance on the broad range of issues necessary to govern the entire country.
I mean, do you really want a US senator voting on what level of chemicals are allowed to be present in drinking water? Is that the goal here?
Right now, the corporate legacy media are working hard to paint the false narrative that the current conservative justices are extreme partisan hacks. Don't fall for their deceptions. Do your own research.
And if I do my own research and decide that the current conservative justices are extreme partisan hacks?
> do you really want a US senator voting on what level of chemicals are allowed to be present in drinking water?
That’s not the level of granularity here. Using your hypothetical example about clean drinking water, Congress would need to delegate authority to EPA to regulate clean drinking water instead of EPA inferring or assuming it has that authority because of some other unrelated statute. Congress itself would not decide what a safe level of arsenic in drinking water is, EPA experts would.
Congress itself would not decide what a safe level of arsenic is, EPA experts would.
But as you said the EPA only would have the authority to regulate "clean drinking water", and since arsenic isn't drinking water, then the EPA would have no authority to regulate it unless Congress specifically says so.
The Major Questions doctrine is an invention of the Roberts court that no court before has even considered.
So yeah, they made up new rules, and yes, you're right, that the rules they made up to achieve a certain goal indicate that those goals are indeed correct.
Edit: The unsaid part of the "Major Questions" doctrine is that what it basically means is that the only decision maker in the US government is the Supreme Court.
This Supreme Court has chosen to parse Congress's bills text both strictly and loosely depending on whether it achieved their political priors. Further, they've alternatively decided to use, and disallow the usage of public statements by Congress members and/or the President for the same reason.
This is little more than a dismantling of the US govt.
To quote Kagan's dissent in this case: "The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get out-of-text-free cards".
>> The Major Questions doctrine is an invention of the Roberts court that no court before has even considered
"The major questions doctrine originated in two Supreme Court decisions: MCI Telecommunications Corporation v. American Telephone & Telegraph in 1994 and FDA v. Brown & Williamson Tobacco Corporation in 2000."
> Right now, the corporate legacy media are working hard to paint the false narrative that the current conservative justices are extreme partisan hacks
Well they are, and I don't need "muh mainstream media" to tell me about it. I can draw that conclusion based on primary sources, i.e. the court opinions, the justices' own words and actions, etc.
I see that you haven't let facts get in the way of a good theory.
I don't think you've read the dissenting arguments yet.
The core of this case is how do you interpret legislative text. The current Court is taking a radically strict view of legislation. They act like they are only reading the words. But in fact everyone has to interpret written words somehow. The question is what context do you use when you interpret the words.
Also keep in mind how the conservative justices were picked. Even if the justices truly decide cases based on non-partisan judicial ideologies (doubtful), the composition of the court has been picked in such a way that their decisions have conservative outcomes written all over them.
It's not like they cornered the decision into their own branch of government like they did with abortion (before Dobbs).
If there's disagreement on how a text should be interpreted I don't care whether a conservative court produces a different opinion to a liberal one.
I care whether congress still retains the ultimate authority in the matter, and in this case it does.
If congress thinks the court is wrong, it can say so.
However I think you'll find that just as there is disagreement within the court as to what this text actually means - there is just as much if not more disagreement in congress.
If congress itself is in disagreement - I think being radically strict is a good way to go.
I think it's healthy for judicial review and separations of powers for legislative interpetation to be kicked back to congress if there's any disagreement.
We have 50+ years of Congress delegating authority and blame to various other branches and groups without actually legislating it, which gives politicians perfect cover and someone else to blame.
If Congress wants to do something, they can pass the law to do so.
Ever since the "it's not a tax healthcare penalty" was upheld by the Court as "yes it is you idiots" it's been painfully clear that Congress wants no part in actually doing their job.
>We have 50+ years of Congress delegating authority and blame to various other branches
This became very apparent to me after pushed Congress to pass an Authorization of Military Force around ~2014. They balked, effectively continuing the trend of delegating their war-making abilities to the executive branch.
Presidents are disposable; congress critters are for life. They'd much rather have a figurehead take the credit and blame, since no matter what they're gone in a max of 8 years.
This reminds me how was Ben Shapiro burned by conservative guy from BBC. And Shapiro called him 'liberal'.
Anything that is not regressive is by default left/liberal for these people.
You have made God from your Constitution while in other countries it is an tool. You have just one more party than China and call your self beacon of democracy.
Tunnel vision.
If you can't see this article as left-biased, then you have some serious blinders on. If you're willing to take them off for a second, here are some major bias flags:
* It only quotes one legal expert, Hajin Kim, who paints the ruling in a negative light. There are no quotes from any other legal expert with a differing viewpoint.
* It puts high priority towards telling us how the feelings of environmental groups got hurt: "Environmental groups will be deeply concerned by the outcome as historically the 19 states that brought the case have made little progress on reducing their emissions - which is necessary to limit climate change."
* It quotes from a U.N. official, which is of course only going to have negative things to say about it. The U.N. could care less about whether a policy hurts America. The BBC also fails to mention how similar policies in the EU have led to more dependence on Russian oil, which was absolutely disastrous in hindsight. Don't knock out your current energy infrastructure when you have nothing to replace it with.
* The BBC focuses on what it perceives as the Supreme court bucking decades of precedent: "For decades, the Supreme Court has held that judges should generally defer to government agencies when interpreting federal law."
“We joined WV to fight the EPA’s overreach & challenged the agency’s overly-broad interpretation allowing them to regulate almost any part of the economy, the consequences would lead to higher utility bills, job loss and overall increased energy prices. This is a huge win for MO!”
“This is a big victory for small businesses and a big defeat for the Biden administration and the regulatory state,” Ortiz said in a statement provided to The Daily Wire. “Whether it’s greenhouse gas emissions, Covid lockdowns, vaccine mandates, or scores of other issues, the Biden administration keeps claiming authority it does not possess, as the Supreme Court ruled today.”
The BBC doesn't care at all about the sheer economic damage that would have been dealt to the relevant states. The BBC also doesn't care at all about the fact that the federal bureaucracy has grown staggeringly in size and power over the past decades, or what that means for our constitutional republic. The BBC doesn't care that our courts have been ruling very much for the left for the past several decades and we are just starting to see a reversal back towards the center. And that's fine. The BBC is in Britain and shouldn't be expected to care about these things. But please don't pretend they are not left-biased on this issue.
> The major questions doctrine works in much the same way to protect the Constitution’s separation of powers. ... It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable “ministers.”
Congress will never have the bandwidth or speed to tackle every problem via legislation. Delegating areas to expert "ministers" is the only way to have a functional government in today's complex world.
This seems like just another reframing of "my ignorance is just as good as your knowledge".
Your citation doesn't entirely support your argument. The court said "[vast] economic and political significance." This seems like a power grab by the court because now they and they alone can decide what has "vast significance," not the legislature and not the executive.
> decisions of vast “‘economic and political significance."
How is "economic and political significance" defined? From what I understand of the decision, it's defined as "6 of 9 people on SCOTUS don't like this regulation." And the deeper you dig into it, the more you find that these 6 people are willing to throw out just to be able to strike down this policy decision.
Supposedly, these 6 justices are advocates of textualism--the actual text, as written in the statute, should be dominant in the analysis of what can and can't be done in terms of interpretation. And here they completely ignore that in favor of trying to second-guess what Congress intended because... they can't use textualism to achieve what they want, I guess.
This is the crux of the problem. The "Executive branch" is basically the cops. That leeway lets the cops invent law, prosecute you, and potentially imprison you. There's another case where the executive branch effectively acted as the legislator, cops, and the judicial branch (they prosecuted someone for a rule they created and found them guilty, all internally).
Congress needs to do these things, via simple and explicit laws that are clear and easy to understand. The role of the executive is _enforcement_, while the judicial arbitrates.
So to recap: the SCOTUS has ruled that the agency established and authorized by Congress to regulate environmental protection does not have the authority to regulate environmental protection.
This is too broad of a reading. Unfortunately despite the mission statement of organizations they are limited by their own laws and rules. In this case this is a narrowing of a particular reading of a paritcular rule that was used to limit greenhouse gas emissions from power plants. See https://reason.com/volokh/2022/06/30/supreme-court-rejects-b... for more details
I'm not fluent in the decision yet, but at first glance:
It seems congress gave them limited power to regulate environmental protection via a law that was written. The EPA seems to have overstepped its legal boundaries in regulating. Instead of saying, "ah fuck it, let the machine run," the court is forcing congress to actually give it the additional power that it's been using, or to stop.
Think of it this way. The FDA has the authority to regulate food, right? So do they get to decide what type of food a restaurant is allowed to serve? No. They don’t get to decide that every county has to have at least 20% Mexican restaurants either. Restaurant owners are allowed to decide for themselves what type of food to serve, and power plant owners are allowed to decide for themselves what type of fuel to use.
Yes, and the dissent spells that out clearly. An excerpt from the dissent:
> The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shift- ing. 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. §7411(a)(1). The “best system” full stop—no ifs, ands, or buts of any kind relevant here.
They were given broad power by congress explicitly. If congress had wanted them to reign in that power or not choose the best system, then they could pull it back at any time. They did not. The court decided that the previous congress was full of idiots and could not fathom future technologies for emission reduction and therefore is moot.
These literalist justices are of the mind that if it wasn’t explicitly written, then it’s not allowed. Generalist/broad swath language is to be ignored. Only specific instruction is to be interpreted.
Yet they decide other landmark cases with a newly invented test for "deeply rooted history and tradition", through which they can put on their highly subjective amateur historian hats to engineer a desired outcome.
I don't think so. Apparently, by my understanding, the issue in this decisions was not regulation of a particular coal plant's emmissions but of pushing utilities to add green capacity to offset GHG emmissions.
Simplified: "The manner in which a vanishingly small group of megadonors and think tank funders make, keep, grow, and distribute their money should be nearly impossible to regulate."
That's exactly what this may do. The ATF in theory can't just up and decide what to ban without congress making a law. Turning law abiding citizens into felons overnight. Bumpstock ban? That's gone in theory. FRT trigger? Braces? ATF is going to quickly realize they can't just make shit up on the fly if it's not a law.
But based on Egbert and Vega, there's now precedent for federal agents to perform warrantless raids, seizures, and arrests, without reading Miranda warnings, with no legal consequences.
The goal of this Supreme Court seems to be the dismantling of the past century of reading the Constitution. They are pushing hard to put the onus on Congress to pass explicit amendments to protect human rights, and to be more explicit in the power they grant the Executive. And they don't seem to care about religion being defacto intertwined with public education.
The United States was "the first modern democracy". But we're running on shoddy, unpatched OS that none of the maintainers feel like fixing, and the users can't change the maintainers due to the rules.
Ideally:
The Senate would be gone.
Either gerrymandering would be dismantled, or state elections for House would be multi-member elections. The House would scale with population.
Justices of the Supreme Court would have a term limit of say, 18 years.
Constitutional amendments would not require such a supermajority of state legislatures.
The Federal government would have a standard for voting audits and take a more active role in protecting voting rights, since the ability for the Constitution to be amended depends on the integrity of state elections as well as federal elections.
Frankly, I don't see a way out of the slow death spiral this country is in without significant upheaval.
I guess it's time for congress to actually pass laws (first abortion, and now greenhouse gasses).
Going to be a lot of anger about the results this court season, but I honestly think it's going to be healthier for democracy overall if congress stop leaning on the courts and bureaucracy to make critical regulations.
I live in a rural area. There are plenty of laws that make sense for my area that would be ridiculous in high density cities and vise verse. Here there is no minimum speed limit and I can drive my tractor down the road by attaching an orange triangle. I can drill my own well. I can chop and burn trees on my property. None if thus would make sense in the city.
What you're describing is pluralism and federalism, not minority rule. Minority rule with your examples would be to force cities to burn their trash because that's what makes sense in rural areas.
The democrats have the senate majority. They just have to be willing to pass laws that the moderates will vote for. For dumb political reasons, they refuse to do this, and this is a forcing function to make them act like adults.
They could even get ~2 Republican votes for broad abortion rights, and likely more if they passed a targeted bill about the health of the mother, incest, etc.
As recently as a decade ago the democrats had a supermajority and passed sweeping healthcare reform bills. It's really not an insurmountable barrier.
The Senate is way out of balance from the power it originally had in 1776.
Delaware was the smallest of the 13 states with a population of 59K. That's 2.36% of the 2.5M total in 1776. There were 26 Senators so each one had about 7.7% voting power.
Today, South Dakota has a population of 905K out of 330M or 0.274% of the population. There are 100 Senators so each has about 2% voting power.
A Senator from South Dakota today represents 1/10 the population that a Senator from Delaware did in 1776. If influence scaled with the same distribution it did in 1776, a South Dakota Senator should only have about 0.77% voting power, but today they have 2%. Population distribution is more widely varied today which creates much more power for lower population states than when in the country was formed.
NYC makes the rules for NY state. And the people of Buffalo, Plattsburg, etc, etc, aren't exactly happy with that or benefiting from that. They have more industrial economies than downstate does and they are kneecapped hard by some of downstate's economic policies.
States that are economically and politically dominated by a single economic zone are a great examples of why minority contingents need strong veto power.
Because the alternative would be not having the rural areas continuing to be part of the nation. If you can't come to an agreement with us, that's fine, try to move the regulation out of the federal government and see if you'll have better luck at the state level with more like-minded people.
How can anyone say that with a straight face in the presence of the electoral college (heck even the elected representatives don't have a legal obligation to vote for their party's candidate) and most importantly gerrymandering. Your assumption that the people can vote to enact change is simply not true.
> [...] but I honestly think it's going to be healthier for democracy overall if congress stop leaning on the courts and bureaucracy to make critical regulations.
I don't think that scales. When some group of people is large enough and has enough different things going on it has to delegate regulation making. There is just too much for the top level of management to be directly regulating everything.
The larger the entity grows and the more it has going on the more regulation making needs to be delegated. At some point you reach the point where even critical regulation has to be delegated.
We passed that point, I think, a long time ago in all the large first world economies.
It is valuable for gov’t agencies to be able to act broadly on their mandates without needing congress to dictate everything. As the dissent puts it, “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.”
We can hope that Congress will step up and legislate, but that seems pretty unrealistic to me. I fear that this is just the latest wave of successes by the party that wants our government to be as toothless and inept as possible and already has a stranglehold on Congress for the foreseeable future.
If the US Congress passed an amendment that stated abortion is legal nationwide, then the Supreme Court would not be able to strike it down as that would be the new federal law.
Yes, but it’s subtle. The mandate of SCOTUS is a check against the other branches of the government to ensure they’re following the Constitution. By passing a Constitutional Amendment, it essentially makes the contents of such inherently constitutional. A Federal law could be (and has been) struck down as being unconstitutional.
I see. I’m probably jumping the gun here, but if such a federal law were to be passed is there something in the Constitution that would disallow it? I suppose it depends on the exact wording and so on?
Generally speaking, a Federal law would only be struck down if its intent or wording specifically violates a clause in the Constitution or its Amendments. So, it really depends on how its worded or what its intent is. I think it's pretty clear that Congress has the Constitutional authority to pass environmental regulations and could extend the EPA's mandates or legislatively codify EPA regulations such that they become law, because they have to do primarily with things which are commerce across state lines and national borders (e.g. where energy originates and where its expended are across borders).
Essentially the same justification for why Congress could create the EPA in the first place allows them to codify any regulations as law or to extend the EPA mandate. What cannot happen is the EPA unilaterally deciding to overreach its mandate, because its taking actions with the force of law but without any check/balance. The Constitution is quite clear that laws are the purview of the Legislative, not the Executive, and the EPA is a function of the Executive.
Amendments and laws are the same thing, so no. The Constitution can refer to the original laws, or the collection of original laws plus all the new ones.
When Congress passes a law, the law (sometimes referred to as the Constitution) gets amended, hence it is also referred to as an amendment.
Edit: ignore this comment, my information was incorrect!
This is incorrect, at least in the US. A Constitutional Amendment requires the affirmative consent of 3/4s of the states for ratification, it cannot be done unilaterally by the US Congress. The Federal laws are considered the lesser laws and the Constitution the highest law.
There is a big big difference legally in the US between an Amendment and something in the USC
So you want for women to have their basic rights for us to go through a constitutional amendment path? Interesting. This feels like fascism through paperwork.
You can say "I don't like X". You don't have to say every is "Fascism". It's ok just to be upset and not like something.
Fascism by the way would be rule by fiat - eg a King or a Dictator can just declare new law: "I declare all Hamburgers shall now be served with bacon and anyone who fails to do shall be executed".
Writing down laws and having a neutral body interpret them is a really important part of fair forms of Government (but not unique to Democracy). There is no defense to a fiat in a Dictatorship but that is a defense in eg Democracy. The publishing, disseminating and authority of rules is the basis of a fair form of government.
Single dictators don’t mean fascism. That’s an extremely simplistic and playground view on fascism. Heck, single dictators are much easier to combat than democratic & bureaucratic fascism.
This isn't some kind of new legislative process. This has literally been the law of the land since the constitution where it's described.
And I'm sorry but I'm going to reject the opinion column of a small newspaper as a source.
You're right in that Fascism is not just composed of single dictators but you are confusing the Rule of Law with beaucracy. Having a high court and requiring laws to be explicit is not "Fascism", it is literally the basis of the legal system.
Where is this neutral body? Half of the court was explicitly groomed to take a partisan stance. They even have the ability to choose their own cases, plus a shadow docket.
Having a body made up of two opposing sides is generally how we build neutral bodies.
The liberal justices are not a beacon of neutrality - they lean towards liberal policies and expansionist interpretations the same way the conservative justices lean towards conservative policies and paring down the Fed.
It is not at all obvious that this is true. I think it's highly unlikely given that the federal government has almost unrestricted ability to pass laws about personal rights (either strictly or in practice, see the federal drinking age of 21, smoking, etc).
I agree that it’s not obvious that such a law would actually be unconstitutional. I just think this court has become an unapologetically partisan body.
That’s not exactly true. Congress can and has passed laws that apply to and override state law. Take minimum wage for example (fair labor standards act of 1938). In your particular example, there are no federal laws so it defaults to the states.
In my understanding -- and I've read good chunks of the leaked Dobbs opinion -- the above claim is not true. The Dobbs decision's reasoning is largely based on a lack of clear federal legislation saying that abortion is legal.
you are correct that the dobb's ruling does not restrict federal abortion regulation, but it is an open question of whether this court would overturn federal abortion legislation as not being related strongly enough to interstate commerce.
Of course that ruling should cut both ways and eliminate the possibility of a federal ban as well, but as we've seen the majority is willing to overturn precedent both as old as 50 years and as young as 2 years (see Gorsuch dissent on Oklahoma v. Castro-Huerta) so its possible they would find the rational to uphold a ban even if they strike down a law mandating access.
They ruled that there is no constitutional guaranteed right to abortion, and in lieu of any federal legislation the decision defaults to the states. They did not rule that the federal government cannot have a say on abortion.
The court ruled in Dobbs that the decision reached in Roe v Wade was improper because there is no right to privacy "deeply rooted" in the Constitution or traditions of the United States, which basically means that if the court sticks with this definition they get to roll back any decisions that they don't like, disregarding two hundred years of precedent.
The fundamental problem is that large important social policy decisions have been made as court cases rather than legislation for the past 50 years. If Congress actually made laws that explicitly granted rights to the people then we wouldn't be in this situation, but by passing the buck to the court they can claim that problems have been solved without actually having to get their hands dirty or face their constituents.
Because they are pandering for votes. They know that the average citizen doesn't know that the law would be deemed unconstitutional based on the most recent ruling.
The Dobbs case has everything to do with whether or not a federal abortion law would be constitutional. The court determined on 10th amendment grounds that the constitution was silent on abortion. Therefore, that power belongs to each state. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
They ruled that the constitution does not confer the right to an abortion. That’s it.
The constitution does not confer the right to clean water and yet, it’s not unconstitutional for the federal government to make laws regarding clean water standards.
Roe v Wade was the court case giving a federal right to an abortion, that was struck down so it became a state's rights issue bc the federal gov't itself never passed a law guaranteeing the the right to an abortion. one major piece of criticism you'll hear again Democrats is that they have taken too much comfort is court precedent then actually passing laws when they were in power
Abortion is not mentioned in the constitution and therefore each state has the power to legislate it as they see fit. Any federal abortion law would be deemed unconstitutional on that basis.
Stop being obtuse. The majority of federal law exists only because broad interpretations of the few subjects the feds were granted the ability to regulate. If abortion was intertwined with interstate commerce or national defense it would be regulated. Of course there's BS that's just as detached as abortion that gets regulated federally but if those subjects were big ideological issues and got the same scrutiny they likely would not be.
It's unfortunate that there isn't a stronger right to bodily autonomy enshrined in the constitution but that's tangential here.
Absent a strict law, congress could just make medicare funding or infrastructure or whatever dependent on abortion access, and every state would fold, just like with the drinking age.
When I travel between states to partake in a service that is allowed in one state but not another that is not interstate commerce. I'm still conducting intrastate commerce within the state where I am located. The federal government doesn't have the authority to regulate all laws federally just because I can travel to a state with different laws.
Regarding bodily autonomy, it becomes a little tricky to make that argument when a mothers' decisions affect a separate body from her own. A body with its own DNA that happens to rely temporarily on her mother. Is the argument that a mother can kill her healthy child as long as it couldn't survive without her?
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Abortion regulation powers were not delegated within the US Constitution and therefore those powers go to the states.
They are limiting the ability of the government to make and enforce laws. The EPA is created with Congressional authority and is empowered to act on their behalf.
Castrating the federal government will have negative repercussions. If the federal government doesn't have the power to control the states, then why bother having one?
They do, they just need to make laws that EPA can enforce. Not let EPA to act on its own. Isn't everyone always talking about unelected burecrauts going against the will of the people?
Not everyone. The phrase "unelected bureaucrats" is almost exclusively a Republican talking point in US politics, used when they want deregulation of exactly this sort.
It's really not that at all. It's a very one-sided talking point, if you're hearing it a lot that simply demonstrates which media bubble you're in.
Search for the phrase "unelected judges": the results are all right-wing sources, literally starting with the Heritage foundation and Daniel Horowitz.
Over here in my media bubble I'm hearing a lot of complaints about judges who borderline perjured themselves in their confirmation hearings, "activist judges" (also a Republican talking point, now being used by Democrats to point out the hypocrisy of that talking point being used when the Heritage Foundation exists), "theocrats", and "destroying stare decisis".
"Unelected" doesn't enter into it, because of course judges shouldn't be elected, the whole point of the judicial system was supposed to be for them to be insulated from politics and focus on the law.
Yes, thank you for demonstrating precisely my point!
The results are r/shitliberalssay, r/conservative, multiple quotes from FOX News, r/roevwadecelebration, r/conservative, r/deplatformed_ (a pro-Trump QAnon crank) and Donald Trump himself.... One single story using the phrase in reference to the Dobbs decision was posted to a handful of leftwing subreddits seven months ago; otherwise it's almost exclusively right-wingers using the phrase.
When people complain about unelected bureaucrats, what they actually mean is that they are unhappy that the executive is doing its job, while the legislature, which has the power to change the direction of the executive, is choosing not to change that direction.
Its some weird Schroedinger's legislature, where it is legally empowered to direct the executive, it chooses not to, and somehow, that choice is the executive's fault, and we need an activist judge to rescue us from it. Instead, of the normal process of 'if the legislature is unhappy with the direction of the executive, it could just issue a course-correction by passing a law'.
The republicans know they can't pass that law right now, so they are using the courts to avoid having to pass it. Then they'll seize control of the legislature in the midterms, and they won't need to pass it. The beauty of having a stacked court, is that you can sit around and do nothing, and not have to write any unpopular legislature, while you sit around and lay all the blame for any consequences of bad governance on appointed-for-life judges.
>>They are limiting the ability of the government to make and enforce laws.
They are in fact doing the exact opposite - telling elected officials that you need to make and enforce laws - not give that responsibility to someone else.
Do you think the IRS should be able to set tax rates? then how is this different?
Congress passed a law to delegate their power and authority to the EPA.
If Congress made a law that the IRS should have the power to set tax rates, then I'd be fine with them being able to set tax rates. Because I think that Congress should have the power to delegate a portion of their power, should they choose to.
This is a weird, and frankly idiotic ruling. Regulations are too complicated and numerous for Congress to decide on every single one. Have you ever read one? They go into excruciating detail about everything because they are written by experts. The best case outcome from this is that the new rules from agencies get tossed into some existing process so that they are rubber stamped, thus adding red tape.
I've lived here in the US for 12 years and recently became a US Citizen. Coming from Ireland, to me the US is quite far from a functioning democracy. The democratic will of the people is not reflected in the make-up of congress, the courts, or three times in my lifetime - the Presidency (Clinton, W. Bush, and Trump were each elected by popular minorities).
Much of this is a result of the court's rulings (very directly in the case of Bush!), entrenching gerrymandering and making it harder and harder to remove the massively corrupting bribery for access that fuels the political system.
Deferring administrative decisions to congress is not a recipe for more democracy, but for more gridlock, and it hands a historically and internationally extremist faction the political victories they want anyway. It will generate Republican outcomes even from Democratic Party executives and congresses (like the current one).
I have to say that, as an anti-authoritarian, conservative advocate of individual liberty, this last week has been extremely inspiring.
To those who are confused about how the system in the US works: the court has basically decreased their own power with some of these decisions. That’s the type of thing that should give everybody, regardless of affiliation, hope about the future.
It also makes it easier for states to expand access to abortion, including expanding it up through the 3rd trimester. Just today, CA put a Constitutional amendment on the ballot in November to allow up to the final minute abortions.
That ruling gave power back to the people and state legislatures. It benefit blue states as much as red.
So 9 unelected lifetime appointees should be able to dictate laws, but 538 democratically elected representatives that change every 2 years based in the will of the people shouldn’t?
It's about giving power back to the states, and in turn the people. So a state and its people would have the power to decide on something like abortion rather than a single centralized leviathan-authority.
> power back to the states, and in turn the people
That sounds quite Stalinist. The people are not the state.
> So a state and its people would have the power to decide on something like abortion rather than a single centralized leviathan-authority.
Right, so your federal government is a centralised Hobbesian leviathan, but state government is not? How is state government not centralised? It's just centralised at a different level.
You know what would not be centralised? Allowing individuals bodily autonomy. Let them decide whether they want an abortion, not have them be forced to carry foetuses to term against their will.
On the particular of abortion, in terms of liberty, the baby's liberty must be considered, not only the mother's.
In the general case of state vs federal sovereignty, state sovereignty is closer to the individual is and more malleable/escapable than a federal sovereign, and is thus preferable (state sovereignty was the original ideal of the United States and the founders go on at length about the benefits of this arrangement.)
How was Dobbs a win for individual liberty? Shouldn't you want the 14th amendment to protect individual liberty as widely as possible? Or do you think it's better for the Constitution to not protect individual liberties?
owning the supreme court was the republicans trump card, the Presidency is only a pit stop toward the true goal. Got it for a life time now don't they? Got to hand it to them, smart long term planning
There's really no reason I can think of that the Dems would deem the Freedom of Choice Act "not a priority" other to play political games in future presidential races. I'm convinced they basically wanted to be able to continue to use the threat of a Roe overturn to steer swing voters to their side, but never actually believed it would happen.
That said, I highly doubt Loving would ever be overturned. It sits on very solid legal ground, and the most conservative judge on the court is in an interracial marriage. Obergefell is genuinely at risk though.
> I'm convinced they basically wanted to be able to continue to use the threat of a Roe overturn to steer swing voters to their side
i wouldn't be surprised, the dems leadership seems to play games like that a lot and constantly get burned (baiting trump to run etc)
> I highly doubt Loving would ever be overturned. It sits on very solid legal ground
thomas said "we should revisit all cases decided via the 14th amendment", and interracial marriage is one of them... just my opinion but i think we are past saying "it wont happen" anymore with regards to these things...
Calling brown skin black is... a weird place to start. Further, there is no legal definition of black person or white person. So, it would be hard to revisit, for instance, interracial marriage in a way that doesn't overlook the 14th amendment
> The case against the EPA was brought by West Virginia on behalf of 18 other mostly Republican-led states and some of the nation's largest coal companies.
>
> They were challenging whether the agency has the power to regulate planet-warming emissions for state-wide power sectors or just individual power plants.
>
> These 19 states were worried their power sectors would be regulated and they would be forced to move away from using coal.
I'm losing hope that anything practical can be achieved because of idealistic nuance like this. We're missing the forest for the trees. Our goal should be the larger combating of climate change, but individual players like this have amazing power to put up resistance or obstruction to that goal which is a net loss for all of us.
I'd argue that one of the main drivers of climate change is this precise behavior: trying to alter the environment to be favorable towards the thing that I own.
I see it on a micro level of people trying to kill insects that get into their gardens or moles that ruin their lawns, and a more macro level of my state/country has coal underneath it and therefore we shall fight to continue to use coal or even my state/country doesn't have a lot of arable land for agriculture because of permafrost or access to non-frozen ports for shipping so increasing global temperature may actually be good for us.
This is it. Values lead to attitudes when they are directed at an object. Beliefs and attitudes are emotionally biased and largely inform behavior. Unfortunately, beliefs don't have to be correct or even coherent with other beliefs to be strongly held.
A person may value a coal mine for a variety of reasons that are very emotionally hinged: economic, familial, etc. To change behavior values and attitudes have to change. That's exceptionally difficult when the competing values, like climate, are more abstract than the ones currently held. I worry that humans are not psychologically equipped to manage problems of this scale.
Change can suck. It can also be great. I think our tendency towards loss aversion makes us focus on how much it can suck. Even if my future might be better, it will be different, and I can want to not lose the thing to which I currently feel attached.
> That's exceptionally difficult when the competing values, like climate, are more abstract than the ones currently held. I worry that humans are not psychologically equipped to manage problems of this scale.
I think we may be equipped, as we've handled problems on much larger scales than I think our ancestors would have expected, and yet I hear you, wondering what (if anything) could change to make us more equipped.
I wonder if reframing our identity could help. Instead of me only being a coal miner or Michigander, I'm also more connected with my human identity. Maybe more backwoods experiences, watching and living TV shows like Alone or Naked and Afraid...I dunno. I wonder if we don't actually have to try to connect to the planet but just more deeply to our local wildlife and to ourselves.
I agree. I've spent the last 10 years focused on trying to help us get better at being emotionally honest with at least ourselves. I had focused mostly on tools for the masses, but lately have been refocused on making tools for leaders and then let leaders change culture by example, as so many of us learn what's ok to feel and what feelings are ok to say from our parents and other authority figures.
This is a great example of how on an individual level commentators want to bend democratic processes to achieve their own goals, but, without fail, they get caught in a tangle of contradictions. What is the Supreme Court's mandate? To stop climate change? To feel out the majority's opinion and make a legal path for it?
This is why democracy is so hard: it consistently yields outcomes that are disappointing to a large segment of the population. There is no "solution" to that problem, and shouldn't be. There are pathways to curbing carbon emissions, but the reality is that too few people, as a body, want to pay that price.
Democracy? Where did democracy ever enter into the picture here?
The Supreme Court is different from the other branch of government heads, in that they decide for themselves what their mandate is, and you don't have any recourse ... unless you're in charge of one of the other branches, and are willing to cause a constitutional crisis by ignoring them or replacing them.
> What is the Supreme Court's mandate? To stop climate change?
Stopping climate change should be everyone’s mandate. When your house is on fire and a neighbor has a hose pipe, so you get into an argument with them because they’re not a fireman?
No. No. Wrong. The Supreme Court's mandate is to be the Supreme Court, not to be the solve-the-current-crisis fixer. I want the planet not to fry and to still have a constitutional democracy at the end of that process.
The problem is that people want to handle this "on the cheap", by executive order, rather than by the actual existing mechanism, which is through Congress. Yes, Congress created the EPA. They didn't give them the authority to regulate CO2, though. That was an overreach when the executive order came out, and that reality finally caught up legally.
You want to regulate CO2? Then do it the right way - by having Congress pass a bill that grants that power to the EPA. That's the difference between rule of law and rule of the president.
You say those states have too much power? No they don't. There's only 18 of them. That's only 36 senators. They don't have a majority of the House, either. So go do it the way it should have been done from the beginning, instead of trying to get away with using a lazy back door.
[Edit: Reading other posts here, the issue may not have been CO2 emission, but rather management of the electrical grid. I still think that CO2 was a massive over-reach when the EPA started regulating that. It was almost certainly beyond the scope that Congress conceived of when they created the EPA.]
Stopping hackers should be everyone's mandate. When your network is under attack and the FBI have stingrays, do you get into an argument with them because they don't have warrants?
If we really cared about getting this done, we'd simply pay ~$30B/year (0.14%) to enter a contract to buyout 100% of US coal production, and avoid it getting burned.
The problem is that China would simply replace that production, netting zero for the environment.
Well the fix here is for Congress to pass a specific law empowering the EPA with explicit authority.
If something like that can't make it through congress then it isn't democratic, and the task then becomes one of convincing the other side. I've the had the anti-coal conversation with plenty of conservatives and they were all open to my point of view.
Ultimately this court's decision is a win for democracy, even if it is a (temporary) step back for fighting climate change.
You've almost got it, but you need to go one step further.
Congress isn't democratic. Congress is overly concentrated.
To begin with, the Senate is absurdly anti-democratic. The 710K residents of Washington, DC don't get a vote there at all. The 600K residents of Wyoming get the same 2 votes as Vermont (620K) and California (39 million). Anything that says that Texas and West Virginia are equal to each other in some mystical sense of having equal weight in decisions that affect the whole country is an ideology not compatible with democracy.
Then, the House of Representatives is (a) absurdly gerrymandered and (b) absurdly undersized. One rep per 750,000 people on average, up from one rep per 210,000 people in 1909 and up from one per 34,000 in 1800.
Any Constitutional "originalist" who thinks that the House of Representatives is just fine at 435 reps is a hypocrite. At one per 34,000, we need about ten thousand reps to meet the standards of representation that the founders thought was reasonable.
Oddly, that would solve the other major problem with the House of Representatives: the 2 year term is fine if the rep only has to persuade the majority of 34,000 people or so. A small campaign can win. A simple requirement that all districts must be compact, convex and allocated according to a geographic/population algorithm would cure the gerrymandering, too.
> Anything that says that Texas and West Virginia are equal to each other in some mystical sense of having equal weight in decisions that affect the whole country is an ideology not compatible with democracy.
It's completely compatible with democracy, and makes perfect sense under federalism. The federal government was not meant to have the expansive powers it does; the problem is that via things like the commerce clause it's massively overstepped the boundaries that were supposed to contain it.
If you want to argue "meant to", you must reference that to a time when the USA was about 17 states, all of roughly equal power, economy and population. 1803,
just before the Louisiana Purchase. There were 12 Constitutional amendments.
"supposed to" is in the same light. The system that worked pretty well for about 5 million people in the pre-industrial age (and assumed that everyone not male, white, and a land-owner was distinctly second-class) does not work so well 200 years later in a world power of 330 million people.
> If you want to argue "meant to", you must reference that to a time when the USA was about 17 states, all of roughly equal power, economy and population. 1803, just before the Louisiana Purchase.
This is blatantly false. The 1800 Census has Virginia with a population of 676k persons (~340k free), with Delaware and Rhode Island having only 64k and 69k respectively. Their economies and 'power' (state militias?) were also nowhere near equal.
The senate was setup specifically because of that disparity, and was designed to prevent larger states from imposing their will on smaller states.
Every individual state is _supposed_ to be sovereign. They hold equal legal status to each other. That's why they are explicitly granted equal suffrage in the Senate.
The fundamental disconnect here is that people from your perspective view the federal government as 'the government', when it was never intended or designed to be that. The federal government was supposed to operate in a much smaller capacity than it has for the past hundred years, with the vast majority of its current responsibilities handled by the states.
> "supposed to" is in the same light. The system that worked pretty well for about 5 million people in the pre-industrial age (and assumed that everyone not male, white, and a land-owner was distinctly second-class) does not work so well 200 years later in a world power of 330 million people.
Says who? There is plenty to criticize about the US government at all levels, but, as someone who no doubt regards American Exceptionalism as an outrageous trope, how else do you explain the success and dominance of the US worldwide? It is, without question, the most powerful, wealthy, and successful country to have ever existed in history.
The US is not exceptional or unique in its history of slavery, natural resources, population, or landmass. As one of the few things unique to the US, it's entirely reasonable to attribute at least part of that success to our form of government.
edit: And, by the way: slave-owning states favored proportional representation in Congress. They were growing at a much faster pace than the northern states.
> This is blatantly false. The 1800 Census has Virginia with a population of 676k persons (~340k free), with Delaware and Rhode Island having only 64k and 69k respectively. Their economies and 'power' (state militias?) were also nowhere near equal.
That's a single order of magnitude from top to bottom.
The smallest states are now the population of VA in 1800, and the largest are now two orders of magnitude larger than that.
> how else do you explain the success and dominance of the US worldwide? It is, without question, the most powerful, wealthy, and successful country to have ever existed in history.
It is:
* Exceptionally large. Russia is twice as large. China, Canada and the US are all approximately the same size. Next is Brazil and Australia, and then there's another factor of 2 drop.
* Exceptionally gifted in natural resources. Between ocean ports and navigable waterways, transportation was easy to exploit. During the agriculture-first age, huge herds of bison roamed free. Oil and gas and coal are available. Most metals and minerals are here. The climatic zones available for year-round habitation are huge, and the deserts are not.
* Exceptionally un-invadable by the powers in the world at its birth. The native Americans were devastated by disease and weapons. Every other human threat needed to lug their troops over an ocean before starting to invade. The War of 1812 was an expensive fizzle for the British.
* Compound effects from the above produced a robust economy.
* Being across an ocean meant that the US could pick and choose when to enter the World Wars. Even after Pearl Harbor, FDR could delay entry until industrial processes were engaged to a wartime footing.
But the American domination really started at the end of WWII, with all the European countries and Russia and China and Japan facing major rebuilding efforts, while the US was largely unaffected.
None of that requires the Constitution to be exactly the way it is. Would it have worked better as a multi-party parliament? I think so. Would it be less effective as a theocratic fascism? I hope we're not about to find out.
> Any Constitutional "originalist" who thinks that the House of Representatives is just fine at 435 reps is a hypocrite. At one per 34,000, we need about ten thousand reps to meet the standards of representation that the founders thought was reasonable.
How is that hypocritical? The Constitution says "The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative". The fact that we're not near the upper bound doesn't make it unreasonable. If they thought a reasonable representation would have required some lower bound other than 1 per state, they would have written that.
I agree. So therefore I want us to fix the gridlock in the legislative branch so they can actually legislate. I think the members of Congress have mostly been captured by the political parties, almost automatically voting with their party line, representing their party more than their actual constituencies. If someone represents my state of Michigan, I believe they don't just represent the Democrats or Republicans who voted for them, but that they're supposed to represent all of the people in the state. When they vote along party lines, it says to me they prioritize their party affiliation over their regional one.
The elimination of earmarks has made politicians more dependent on the party and good grace of industry for their elections so they have to tow the party line harder and cater to the lobby more whereas back in the day people could vote against their party if they were bringing home something else to make it worthwhile.
I agree. A friend of mine does a lot of research on Congress and says that getting rid of closed-door committees and committee votes has really increased the power of the parties for reasons you mention: it's hard to negotiate in good faith when people (e.g. lobbyists and party officials) are constantly looking over their shoulders. Earmarks and other things can give them ways to work things out when in private, compromising here and there, and coming up with a bill that will be balanced in the end.
I strongly suggest his research[0].
EDIT: Oh, and my friend[1] who does a lot of the research is a ex-NASA scientist, which is one of the reasons I also got excited about his research, as I studied electrical and computer engineering in college and was excited to see an engineering mindset applied to political dynamics.
Agreed. This isn't about climate change, it's about proper procedure as the Constitution sets it up. The EPA went past its mandated purposes as set up by law. Congress needs to pass a new law to give it this power. If it can't, that's their problem. This was a good decision as far too much power has been given to the administrative state to basically make up laws.
The current court is starting with an outcome they like and then writing the decision from there. There is no law that will survive a sufficiently motivated cherry-picking of case facts and legal history.
> If something like that can't make it through congress then it isn't democratic
Ah, yes. The institution where 41 Senators, representing a mere 22% of the US population can block legislation is the zenith of democracy. Especially when considering the legislation we're talking about is as a response to a court case ruled by 6 judges, 5 of which were appointed by presidents who lost the popular vote, approved by senators representing fewer citizens than the senators who voted against their approval. Real nice system of democracy.
> Ultimately this court's decision is a win for democracy
We've now learned that the supreme court will take up a case concerning the "Independent legislature theory" which, if affirmed, would allow state legislatures to unilaterally overrule their constituent's votes in both state and federal elections.
I can't wait to see the majority maintain its staunch pro-democracy stance that it takes in this case in the terms to come.
Congress already has the option of overriding/veto any EPA adopted regulation. It has never used that power to remove regulation of CO2. This is not a win for democracy -- quite the opposite.
But that whole business of singling out India and China is BS. If China was split up into 10 smaller countries that together emitted the same amount in aggregate, those 10 smaller countries would fly under the radar. It's only because China happens to be a single country that people point the finger. Per-capita emissions is the thing to be focusing on.
People are only using the metrics that make them/their country look best. The USA is topping the chart in cumulative GHG emissions, which is objectively the cause of climate change (carbon stays in the atmosphere).
It’s valid to focus on China, because China is where lobbying efforts are best spent. A single huge government making a small change will “do” more than a small government making a small change.
India's greenhouse gas emissions are 50% of those of the US. Per capita they are at 12% of the US.
BTW, per capita is the correct comparison because the atmosphere does not care about arbitrary boundaries. To illustrate imaging a world with just 2 countries, one emitting X per year and one emitting 2X per year. The population of first county is P and the population of the second country is 2P. In this example we'll assume little trade between the two countries.
That world needs to get down to a total of 2X per year. If we do thing per country that means each country gets to emit X per year. So the first country is fine where they are and the second country needs to cut emissions in half.
To the people of the first country they just continue their normal lifestyle, which generates X/P emissions per capita. The second country has to go from X/P per capita to 1/2 X/P. They will need to make big changes that will likely greatly reduce their standard of living.
But then separatist parties, upset with such a big blow to the standard of living, come to power in the second country, and it splits into 9 separate countries, each with population 2P/9.
In this new 10 country world, each country's share of the global 2X emission budget is 2/10 X. To meet this the first country has to cut per capita emissions to 20% of what they were before, requiring drastic changes in their economy and lifestyles.
The 9 new countries on the other hand only have to each cut per capita emissions to 90% of what they were before. Their standards of living don't have to change much.
...and now there are strong incentives in the first country to split!
This only ends when you reach a configuration where every country has the same per capita allowance.
Trade complicates it, because now emissions in one country might be going toward doing things for the other country and so should be counted toward the other country's emission budget. That can be dealt with by something like a cap and trade system so countries can trade some of their emissions budget to cover emissions done for them in other countries.
Unfortunately most pro-nuclear talk I see is in form of excuse 'my way or highway'. Like the one you did. As bonus you are trying to shift focus to other actors (which true, are also relevant but still...)
Agreed. China and India put out significantly more and dirtier pollution than the US and nuclear is the only realistic pathway forward for base emissions-free power.
Furthermore, this was the right decision. You can't just have the executive branch make up law. If Congress wants this, they can pass a law. That's how the US works.
Then tell the EPA to start lobbying the NRC to allow new nuclear plants and start allowing innovation in the space.
The EPA is not a legislative body. If you want to make it illegal to run a coal plant because you feel like it’s your duty to force some pain on the citizenry for what you perceive as a higher calling: pass a law.
> If you want to make it illegal to run a coal plant because you feel like it’s your duty to force some pain on the citizenry for what you perceive as a higher calling: pass a law.
Nobody wants what you described. Global warming is literally killing people by the thousands every year now. Wars are coming, mass migrations and climate refugees. This is a crisis, it’s just not a localized one. And it doesn’t have to be painful. Building + running windmills, solar, even nuclear, those are all good jobs.
You might just as well frame it “if 19 states want to make the world suffer so a few corporations can profit and people don’t have to re-train”.
>>If you want to make it illegal to run a coal plant because you feel like it’s your duty to force some pain on the citizenry for what you perceive as a higher calling
>Nobody wants what you described
Do you think everyone hear has the memory of a goldfish or are you just lying to us without a care in the world?
We can literally go into any HN thread on the subject of coal and see tons of comments to the tune of "this will cause people a bunch of pain but outlawing X, Y and Z or taxing them to create the same effect is necessary in order to get off of fossil fuels therefore it is necessary for the greater good". I don't disagree with the premise that it's gonna hurt but just turning around and saying "nobody's saying that" when it suits you is beyond bad faith behavior.
People like you are just as bad for progress as the coal lobby is because you undermine the people telling it like it is.
Op’s message was that people think it’s their duty to force pain on people for some higher calling.
As I said, nobody wants that. Emphasis on “wants”, emphasis on “that”. The same people calling for climate action are the ones calling for a just transitions - UBI, green new deals, etc. so if they were to get their way it wouldn’t actually be painful. That’s the “wants” part.
But even if we don’t get those things, it actually has to happen - it’s not some random desire. It’s an existential threat to human life. So, it has to be done at whatever cost. Not because they “believe in some higher calling” - because the facts are that this is going to hurt everyone if we don’t deal with it at great scale asap. And that’s the “that” part.
If you want airspace to be regulated, pass a law (cancel the FAA). If you want frequencies to be regulated, pass a law (cancel the FCC). If you want individual food and drugs to be regulated, pass a law (cancel the FDA). If you want cars to be regulated, ...
You do know that coal power kills more people than any other power source right? That makes health care a hidden cost, paid by the citizenry, to subsidise an irresponsible energy industry.
Have you seen how hard it is to pass a contentious law these days? Most people can agree about its merits but it's naive to act as if special interests haven't manufactured the contention and captured the regulatory and legislative processes.
We don't have the luxury of proceduralism any more.
Don't be hyperbolic. We had democracy before Coney-Barrett, Kavanaugh and Gorsuch were appointed.
Hamstringing the EPA over a contrived technicality in the wording of its charter is a travesty of justice. It's public utility is obvious. It's in the name.
> Have you seen how hard it is to pass a contentious law these days?
So what? Not the SC's problem.
> Most people can agree about its merits but it's naive to act as if special interests haven't manufactured the contention and captured the regulatory and legislative processes.
So if special interests have captured the regulatory body, how is letting them keep (or gain) their unelected power any better?
> We don't have the luxury of proceduralism any more.
I can use the same argument about any topic we disagree about. Do you not see the problem with this line of thinking?
Indeed, it's precisely to the contrary and actually to the new SC's advantage. Republican obstructionism is precisely why conservative judges have adopted this new commitment to originalism. But on the other hand, isn't a clean environment a problem for us all?
"So if special interests have captured the regulatory body, how is letting them keep (or gain) their unelected power any better?"
Because this executive has been trying to fix it (https://grist.org/politics/epa-joe-biden-environmental-law-e...) and congress has been trying to keep it broken (eg. https://thehill.com/policy/energy-environment/589767-gop-sen...). This ruling takes power away from the executive and hands it to an even more captured, paralysed congress. Whether the EPA derives its mandate from the executive or the legislature makes no difference since BOTH are elected bodies. Why mindlessly repeat that red herring? Obviously the real issue is whether it's effective and working for the public interest or for special interests.
"I can use the same argument about any topic we disagree about. Do you not see the problem with this line of thinking?"
No you can't, except in cases where the importance of the procedures themselves are outweighed by the importance of what they are preventing. For a decade the SC was okay with the EPA using the clean air act to limit carbon, and then it wasn't. The only thing that changed is the political constitution of the court which has exploited technicalities and procedural hurdles to prevent the addressing of an urgent, existential threat. Or is it just a coincidence that the sudden desire for more carefully crafted legislation comes from conservatives who have always opposed stronger environmental regulation?
It's a pretty narrow, justified case I'm making against excessive proceduralism. Do you not see a problem with checking tickets for lifeboats?
> Then tell the EPA to start lobbying the NRC to start building new nuclear plants
No, stopping the coal plants is the end goal. Whether it's by saving energy or building alternative sources like solar/hydro/nuclear is irrelevant to the EPA's goal (protecting the environment/mitigating climate change).
Innovation will not save us, the tools have been here for decades.
This is true. We have a democratic republic rather than a plain democracy, because the founders were (rightly) concerned that plain democracy produces a tyrannical majority, and wanted to create a free society which would only impose government authority when there was broad-based and widespread agreement.
Indeed, the founders cared so much about this that they wrote into the Constitution a guarantee not of a democratic form of government for the States, but a republican one
U.S. const. Art 4 Sec 4:
> The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
In theory, this guarantee could be satisfied by entirely nondemocratic governments, so long as they were republics. Courts have not really tackled too many of the details of this clause over the years, primarily on the grounds that the courts largely feel that they are unable to offer remedies. (https://constitutioncenter.org/interactive-constitution/inte...)
The purpose of those structures is to prevent a razor thin majority from going off half cocked and doing something there isn't sufficient support for.
I think you need to take a look at federal controlled substances policy. Even with resounding majorities in favor of various degrees of changing things in a particular direction the small steps that everyone can agree on still don't get done. The incentive structure for implementing popular change is broken and the difference between 50.0001% and 60% doesn't change that.
I'm not at all arguing that those structures are delivering value in their present formulation, just that they are present, they are non-democratic, and that was intentional (so arguments predicated on raw democracy are either disingenuous or misguided).
I think I would argue that the simplest first cuts to untying the current knot are to rethink the whole "legal bribery of elected officials" thing and find a reasonable way to enable multiple parties so that coalitions can align along a more complex set of needs than two sets of (absolutist) wedge issues.
Sometimes I don’t. The climate doesn’t care about your vote or belief system. So, you have to work around democracy. Play to win, the stakes are too high not to.
They already are. What do you think this is? They spent decades to enable this, they’ve said so publicly. Mitch McConnell’s book is even called “The Long Game.” They are knowingly, actively subverting democracy for their own ends.
Each party's advocates say "the other side has been playing to win rules and democracy be damned for decades, and if we don't start ignoring the rules and playing dirty, they'll kill us all".
Each side claims to love democracy but to be willing to destroy it only because doing so is necessary to protect them from the Enemy.
I think that maybe most people don't actually care about democracy, they just want to win the war.
I want a habitable planet for my kids. If you don’t believe in climate change, there is simply no value in engaging. The science is proven by scientists who do science things. It’s like someone not believing in gravity. “But I have my own opinion!” They believe their opinions carry the same weight as facts. You’re just lighting precious time and effort on fire needlessly, banging your head against the brick wall expecting the brick wall to critically think with factual information.
100%. We need to stop treating the judiciary as if it were royalty, and instead operate the government using the established rules for change.
That means forcing Congress to accept its role and do its job instead of being a place where the members spend most of their time fundraising and trying to keep their seats.
Large economically disruptive policy changes should come from the legislative rather than the executive or judicial branches, as they are more democratically accountable, at a finer level of detail. To the extend that the consitution codifies that, it's a good thing.
How much of the republicans apparent desire to drive climate change off the cliff can be explained by religion and belief in the end of the world? Apparently 40% of americans believe in imminent end of times: https://www.christianpost.com/news/poll-4-in-10-americans-be...
People use idealism to justify decisions that would only be useful in an ideal world, but are terrifying in the real world. This comment thread is a good case study.
Sure, maybe, in an ideal world we want congress to pass laws in the place of every single regulatory body. (This in and of itself is totally unclear to me).
However, the reality is that by getting rid of regulatory agencies we prevent important limits from being enforced.
I mean, read this part of the dissent:
> 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.
There's a backstop in place to allow the EPA to prevent pollutants from fucking us up. Ideally it would be regulated through a formal program. It's not. Does that mean we should just get rid of all backstops & regress to the stone age?
For those looking to get an objective understanding of this decision I found this article useful[0]. The gist of it is that this is more about preventing future rules to be put in place rather than changing anything that the EPA is actively enforcing. Essentially the EPA cannot force the shut-down of coal fired power plants (or other high emission energy sources) using the Clean Air Act.
As someone very pro renewable energy obviously I would prefer a different outcome, but the good news is that these types of power sources are just plain uneconomical these days, so their shutdown is going to happen anyways. Perhaps renewables won't have as many regulatory assists as we hoped, but the good news is that they can stand on their own, and the clean power industry keeps building better systems then capitalism will take care of the transition for us.
It's interesting how this court consistently rules to limit the power of government when it is acting against corporations but happily expands the power of government when it is being wielded against people.
'WASHINGTON—The Supreme Court on Thursday curtailed the Environmental Protection Agency’s powers to restrict greenhouse-gas emissions from power plants, in a decision that could limit the authority of government agencies to address major policy questions without congressional approval.
Elaborating on earlier decisions, the high court said federal agencies need explicit authorization from Congress to decide issues of major economic and political significance, drawing on a principle known as the “major questions doctrine.”
In his decision for the 6-3 majority, Chief Justice John Roberts said Congress never gave the EPA the authority to change the methods a power plant uses—regulations known as “generation shifting” requirements.
Chief Justice Roberts said that forcing a nationwide transition away from coal may be a “sensible” idea, but the EPA cannot do so without a clear authority from Congress.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the chief justice wrote, adding that the “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute.”'
Carbon dioxide was not considered a pollutant when the law was passed, so congress should specifically authorize such a significant expansion of the EPA authority. Rule by executive fiat is never wise, and if the case were clear cut on this matter, it would not be so hard to get congress to act. There isn't and never was democratic consensus on this topic, and people who support it need to convince people who do not before it can become public policy.
I feel like a lot of people here would do well to try and understand the role of the Supreme Court, instead of treating it like a second version of Congress.
I'm old enough to remember when I could grudgingly accept that there was some wisdom in decisions I disagreed with, even if perhaps not enough to sway me. But I could see something argued intelligently.
This is just nakedly partisan stuff going on. I think viewing it through that lens - "we're going to do what we want because it fits our politics" - makes the most sense.
Highly disagree. All of the recent decisions make perfect legal sense, this coming from the son of a Constitutional attorney who has described to me the rulings, reasons behind them, precedents, etc.. And he's a pro-choice, anti-gun Democrat. He still agrees with the legal decisions. I read the rulings myself too and they make total sense given what I've learned over decades of listening to him.
They're pretty much at the point of flat out lying about things, like the prayer case. Sotomayor, in her dissent, included actual photographs of the coach huddling/praying with the whole team, which is quite coercive behavior. It wasn't a 'quiet prayer'.
>> included actual photographs of the coach huddling/praying with the whole team, which is quite coercive behavior
The photo on the bottom right was from before the coach was asked to stop giving post-game talks that included prayer, an order he complied with. It is not the behavior at question in the court case, so absolutely irrelevant to the matter at hand. I think Sotomayor should have included a date on the photo to make this clear.
Photo on the top right is of the coach being joined in prayer only by members of the opposing team, so if he was coercing the players on his own team, is was quite ineffective. It was a silent prayer, so yes, quiet.
Photo on the left is the coach being joined in prayer by members of the public, not team members, so also not good evidence of coercion. Also a silent prayer, so yes, quiet.
I think the dissenting opinion on this one makes a lot of sense. Even so, making legal sense doesn't mean they are not biased, seeing as the court decides which cases to rule on, and which ones to ignore.
You can doubt all you want, I read the rules, concurrences, and dissents on most SC decisions. The media doesn't really report the facts on them so I prefer to get them right from the source.
Which is ironic since FDR most of the Court decisions were nakedly partisan in the other direction, massively expanding the power and scope of the federal government well beyond would should be constitutionally allowable
The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent).
Now all that technical debt is coming back to kick our ass.
This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
Reminder: decisions like Roe v. Wade (and many others in the era before this court) weren't passed by "the left" in a political sense. For example: five of the seven-justice majority in Roe were Republican appointees.
Roe v. Wade was decided in 1971. That's not too soon after the great realignment from the election of 1964. Some of those Republican appointments like Brennan and Stewart happened well before the realignment. And even then, the author of the opinion was written by Blackmun who was appointed by Nixon. Nixon, the guy who brought us the EPA and many other things the modern Republican party likes to hate. Meanwhile one of the dissents to Roe was written by White who was appointed by JFK.
The parties of 1971 were both very different compared to today. You can't assume that someone active in the party in 1956 (Brennan) holds the same values as what's talked about on OAN today.
> Congress can fix everything that’s happened in the last few weeks via proper laws.
Can it?
In principle, sure, anything can happen.
In practice, given how it's not possible to pass any legislation without a filibuster-proof majority?
As others have commented in this and related threads, this is a win for industry precisely because congress CAN'T do anything in practice, given the reakpolitk of how congress actually "works" today.
I wish folks would stop saying "well, it should just go back to the spec, problem solved". This isn't code. This is the convoluted and complex world of political reality, where, unfortunately, might does often mean right. And more often than not, addressing the root cause isn't even possible, much less practical.
If anything, it's the current supreme court that is taking a binary view of legal interpretation and have "fixed the glitch". Glitches which in reality are patches which have been added organically over time to address changes to the underlying OS, new and unheard of use cases, changing specs and requirements, etc.
Unfortunately, a full rewrite often requires systemic overhall and reboot (something I would hope people are averse to doing in practice)
This is very much the opposite of calvinaball. The rules are in the constitution and that hasn't changed in quite a while.
EDIT: RE: no right to poop(sic) in the constitution
It's a list of things the government may not do, not a list of things you may do. Try reading it, it's very short. I would imagine the court would rule a law against that would violate the right to life.
That rule has been there since the beginning even if you don't acknowledge it.
EDIT: It didn't need to be acknowledged because there wasn't a strong push to disarm the population until fairly recently.
EDIT2: It looks to me like they only really go back to just after the civil war, largely to keep African Americans from carrying firearms. The first attempt by the Federal Government to ban them was in the mid 20th century which was exactly what I expected.
EDIT3: James Madison tried and failed to pass the legislation (presumably because it was unpopular), at the state level (not federal level) and it didn't prevent people from owning guns just carrying them in public.
But isn't it strange that it was there in the beginning and no one acknowledged it for about two centuries?
EDIT for your edit: Huh? When I was a kid in Texas way back in the 90's, it was illegal to carry a gun period. You could take them out hunting or to the range or whatnot, but carrying a gun was illegal. The first concealed handgun law was 1995 if memory serves. Carry bans go back to the colonial era.
> It's a list of things the government may not do, not a list of things you may do.
And yet, they saw fit to include the Ninth Amendment, so some nincompoop wouldn't go "there's no right to privacy!"
> I would imagine the court would rule a law against that would violate the right to life.
The wording is "nor shall any state deprive any person of life, liberty, or property, without due process of law"; what happens if pooping is made a capital crime?
Why is banning abortion, marijuana, and whatnot not a similar violation of the "liberty" part of the same clause?
(and what's with this edit-to-reply thing you've got going?)
In this new climate, it will take more than laws. Permanence will require constitutional amendments (which is actually how most things get rooted at the state level, the state constitutions change pretty regularly).
Exactly this. And by putting this off, we've avoided the hard work to get the laws we deserve. After all, if the courts can just wave a wand and make something a `right`, who cares who you vote for or if you even vote at all?
I think the temporary pain will be worth it in the long run as we do the hard work to pass the laws the majority agrees will improve the environment, human rights, and so on.
It's abundantly clear from the Dobbs majority opinion they will not accept a Roe statue from Congress, that they would overturn it on 10th amendment grounds. It's not an express power Congress has, thus it's strictly up to states. Since they also stated in Dobbs they'd use rational basis scrutiny, the lowest scrutiny possible, when judging state laws on abortion restrictions, I expect they will accept state laws that:
* define moment of conception as murder
* fetus as citizen in fact, meaning out of state abortions are also subject to murder charges
* high burden of proof on women, low burden of proof for the state, that a miscarriage rather than abortion occurred
* hold abortion-is-legal states to article 4, section 1 "full faith and credit", i.e. civil fines and extradition for persons fleeing judgements in abortion-is-not-legal states
* hold companies paying for abortion procedures and travel as party to a crime
The Court is lost for a generation, short of expanding the Court. There is no chance 3/4 of the states will ratify a constitutional amendment on this issue. And there's a lot more litigation to come.
And should it come to the Court, I expect they will set aside Griswold, Lawrence, Obergefell using the same logic - it's not a federal power. How they could possible not reverse Loving, I'm not sure, except that likely no state is as yet backward enough to try and making interracial marriage illegal once again.
I think there is merit in the argument that we've been asking the Court to be expedient, while then not doing the dirty work of putting these rights in constitutional amendments. Instead we're kicking the can down the road, but then we are also avoiding a lot of public contention arguing about it - for good and probably not for good to some degree. But look at the polling. Most Americans now disapprove of the judiciary nearly as much as Congress. With all three branches of government at historic low approval, it is very damaging to representative democracy that this has happened, not least of which is that an unpopularly elected president put these three justices on the Court who lied under oath that these cases are "settled law", and yet just deeply unsettled one of them.
By the standards of the Soviet Union, both US political parties are extremely far right; by the standards of Pharaonic Egypt, they're incomprehensibly far left. Whose standards for center are you using? The objective standard? Are you sure that exists? Are you sure you're not just taking your own personal beliefs about what seems reasonable, declaring the middle of that the objectively correct center, and then getting angry when the real Overton Window isn't centered around that point? People act as if you should just be able to take the leftmost thing imaginable, the rightmost thing imaginable, draw a line between them, find the middle, and then get angry if both US parties are on the same side of that line. But maybe they have poor imaginations. The leftmost thing I can imagine is an insectoid hive-mind; the rightmost thing I can imagine is a rapidly expanding cloud of profit-maximizing nanobots. Are we sure that a line drawn exactly midway between those two things lands on Joe Biden? What if it lands on anarcho-capitalism? Does that mean every existing human is left-wing?
Taken as a relative claim, it at least could make sense. But relative to what?
Relative to the US? False; both parties usually get about half of the vote, suggesting one is to the right of the median American, and the other to their left. You can probably argue that the Republican Party’s structural advantages cause both parties to be a little to the right of where they’d be without them, or that Americans’ ignorance of party platforms means you can smuggle a few points in that are slightly more extreme than what they’d endorse, but it’s going to be a small effect.
Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just struck down is necessary".
Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way.
But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value.
Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.
> But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen.
It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else.
You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
It is explicit in the Constitution that people have rights not listed in it. Those unenumerated rights are, by their nature, not listed, but I find it hard to credit the idea that Americans don't have a right to privacy.
> You also ignored my example of 2A
Sure, because everyone does. The number of people arguing bans on personal ownership of nuclear arms are unconstitutional is... small. Even originalist/textualists seem to agree it's by no means absolute.
I don't think this is a winning argument. The fact that one argument - and one thought important enough to enumerate actually explicitly - is frequently ignored doesn't support the idea that another unenumerated one exists, and quite possibly the opposite.
More specifically, most Roe supporters have been ignoring the "bodily autonomy" philosophy all along, and more recently even going directly against it. It would seem that it's no more absolute than you believe 2A to be.
As I wrote elsewhere in this thread:
1. Have you taken to the streets protesting when people, even after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the "bodily autonomy" argument behind Roe is false.
Roe talks about this in terms of "privacy", saying that a woman in consultation with her doctor has the right to determine what's the best course of treatment; the government doesn't have the authority to take abortion off the table.
So, how does the government get the authority to take marijuana off the table? How do they get the authority to take any other treatment off the table? And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
This all seems to be the same argument, so why don't I hear very many Roe supporters arguing for the freedoms I referenced above, or at least providing answers to my questions? What's the principled line of philosophy that supports a freedom to abortion without also recognizing a right to medicinal marijuana or passing up a covid-19 show (when either is done under doctor supervision)?
FWIW when it comes to the argument of bodily autonomy in regards to covid vaccinations, you're still free to not get a covid vaccine. The government isn't marching into your house with armed men injecting you with covid vaccines. Making vaccine standards for things like public schools (which you can still choose to homeschool or send to private schools) is not the same as the government forcing you to get a vaccine.
When it comes to marijuana, it can be more difficult to get past Wickard and Heart of Atlanta Motel when it relates to things like commodities sold on near international markets. Abortion services are often way more local of a law, far more difficult to argue interstate commerce.
when it comes to the argument of bodily autonomy in regards to covid vaccinations, you're still free to not get a covid vaccine.
I think you're making it sound more black-and-white than it really was. It's true that they weren't talking about coming into your house and holding you down. But they did try to make it as close to "you can't get a job to earn money to buy food" as they could. Pres Biden did issue an EO saying that anybody doing business with the federal government, and anybody in their supply chain, must ensure that their employees are vaccinated. Given the enormous size of the federal government, this covers a huge proportion of the country. (the courts did throw this out, but not before they'd coerced a lot of people to go against their own conscience)
Further, that's as far as the politicians and regulators were able to go. I seem to recall talk in some locales (NYC?) talking about wanting to implement vaccine passports, with which local businesses would deny entry to unvaccinated people, so you can't even go to the grocery store to buy food.
And, of course, my main point was about what the masses were arguing for. I don't think you could seriously deny that a sizable faction of people were arguing that the government SHOULD do all of the above. And that's exactly what I'm saying: people are claiming to back the idea of "bodily autonomy", but for a whole lot of them, their actions demonstrate that this is much less a fundamental inalienable right than they're willing to admit today.
Bodily autonomy, right? Like, the right to not to get infected by a communicable disease in which there are preventative measures out there?
A pregnant woman the next desk over to you doesn't have any effect on your body. A person infected with covid the next desk over does. You do understand how pregnancy works, right?
I imagine most would agree I have bodily autonomy to move my arms. I can't then swing my arms and beat someone to death, right? Your right to swing your arms ends just where the other man's nose begins.
You have all the right you want to not get vaccinated so long as your action doesn't impact everyone else around you. Feel free to go live in the woods with everyone else who doesn't interact with the rest of society. Nobody is going to come by and say you need to get vaccinated, just that there are a lot of benefits to being a member of society if you choose to do so.
> Roe talks about this in terms of "privacy", saying that a woman in consultation with her doctor has the right to determine what's the best course of treatment; the government doesn't have the authority to take abortion off the table.
Roe also makes it quite clear it's not absolute:
"A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."
> So, how does the government get the authority to take marijuana off the table?
For the same reason as Roe highlights above; that the right to privacy is not absolute. I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
> And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
I think that's true directionally, but not quantitatively. I haven't seen riots about marijuana, or claims that SCOTUS is corrupt.
And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy. Admittedly, there may be differences in scale of risk that lead to this difference. But the rhetoric we're hearing today seems to frame abortion rights as an absolute with no room for such finesse. And I think it is on them to explain how to draw that line.
So? "You can only say it's a right if you riot about it" is a weird position to take.
> And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy.
I don't know what you think the leftist position is on this, but no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19.
Virtually all states require quite a few vaccinations - measles, mumps, rubella, etc. - in public schools. Once again, Roe doesn't rely on "bodily autonomy", and any such right is very clearly not absolute (as Roe itself makes clear about privacy). My autonomy to swing a knife around ends when it hits your face.
Thought experiment: Do we have a right to poop? Can Congress forbid me from pooping? How would SCOTUS rule on a law banning bowel movements?
> "You can only say it's a right if you riot about it" is a weird position to take.
A month ago, governmental violations of bodily autonomy were ignored, or grumbled about at most. If you want me to believe that this change is qualitatively different, you need to explain that, or else I'm going to put both violations in the same bucket.
> no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19
First, regardless of what they've actually tried to do, there has been a lot of talk about how they should. Such talk comes pretty much exclusively from the same group of people who think that overturning Roe is an apocalypse.
Second, they most certainly have tried to force vaccination as much as they could get away with. That wasn't by a law saying "get vaccinated or go to jail". That was a backdoor coercive thing where the gov't tried to say "if you want to do business with the gov't then all your employees must be vaccinated (leading to employees getting fired)", in conjunction with the fact that the government is already so damned big that they can be the 800lb gorilla in purchasing as a backdoor alternative to legislation. And while this was going on, people who I'm very sure support Roe were nodding their heads saying it's the right thing to do. Again, there may be a principled argument for treating this differently. But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
> But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
I'll take a stab at one potential explanation.
Pregnancy isn't infectious; you will not get pregnant by sitting next to a pregnant woman on the bus. Rights become more complicated when they impact others.
As well as the “privileges and immunities” clause.
The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
That works in principle but not in practice. The core issue in roe v wade was tossing out precedent while failing to show reasoning why tossing out precedent should be ok. So now the court seems to be chaotic. Whatever the makeup of the court, they may toss out precedent that doesn’t match the current majority’s interpretation of the constitution (of which there are many). Then suppose the scotus becomes a liberal majority. Then they may reinstate all the tossed out precedents. That’s just chaos, with the main focus becoming which party chooses justices, not any reasonable continuity and coherence of constitutional law.
I agree with your concerns about thrashing. I think that the fact that justices aren't elected politically, together with their typical lengthy tenure, is intended to buffer against that. But as politics becomes more polarized, perhaps the buffer doesn't serve as well anymore.
A core problem IMO is that justices are appointed politically. There's an assumption that politicians and their parties will appoint unbiased justices, presumably out of the goodness of their heart and respect for norms... That assumption looks laughably flawed today.
Agreed. Elsewhere in this thread someone pointed out that some recent justices may have been... less than truthful... in answers to the Senate during their nomination hearings, at least giving the impression that they'd continue to support Roe.
My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
How can you think it's not blatant politics when they lied about their opinions in congressional hearings only to overturn Roe once they had power. How can you think that is in good faith?
To argue, "oh whoops you didn't _do the work_ to obtain your RIGHTS" is also simply a distraction. The US is founded on the concept of unenumerated rights. Do not be fooled. We had those rights and now we don't thanks to this new court.
Look at it the other way around: if the nominees are being questioned about what their opinions are on specific issues, the Congress has already turned it into a political match. The Congress ought to be trying to probe for their qualifications as a justice, and I don't think that one's opinion on self defense or abortion figure directly into that.
Further, I don't buy that you truly believed the argument behind Roe anyway. I don't know you personally, but it's a good bet that you don't support the philosophy that it described. What Roe said[1] was that a person can make whatever[2] treatment they individual decide (in consultation with their doctor) is most appropriate for their circumstances.
But I'm betting that you don't actually agree with this, as evidenced that you likely haven't pursued other violations of it with such vehemence. So I ask you:
1. Have you taken to the streets protesting when people, after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the argument behind Roe is false.
[1] Believe it or not, I actually support the philosophy of bodily autonomy. But that doesn't change the fact that the actual argument behind Roe was a notably lousy one. This is precisely the point I was trying to make in my original comment: one's opinions about the goodness of something are independent of their judgment about the legality of legislation under the Constitution.
[2] Actually, Roe's text limits itself to just abortions, but it seems clear that such a principle ought to apply to all medical treatments in principle - that's why many of today's protests are framed more broadly as "bodily autonomy".
Being forced to carry to term is a different circumstance. As you say yourself, the text limits the ruling to abortion which even today's court has ruled as a unique circumstance. Women should have this right and not the states. I truly believe that, but my opinions are also a distraction...
The justices lied to congress and were always going to overturn Roe. There's no higher judicial ground here.
You're ignoring the fact that there are several philosophies behind constitutional interpretation, and that the dominant philosophy which you list here ("sole job is to interpret laws through the lens of the Constitution"), also called Originalism, is a recent creation by Scalia.
In the end, they still accept or reject laws, with no accountability whatsoever. The supreme court’s decisions are laws, for all intent and purposes, and have just as much weight as what Congress writes.
The incestuous relationship between the judiciary and the legislative branch in common law systems is very problematic and does not allow true separation of powers. Like so much in our democratic governments, this works as long as most participants behave in good faith, but breaks down when some do not.
The way in which judges are brought to the bench in America and subsequently to SCOTUS is political. While it isn't Congress it isn't as independent as many people previously portrayed it.
I wonder if there’s a change within living memory that has caused that cough Bork cough
Snark aside, there’s a reasonable case to be made that Congress has been increasingly treating the judiciary as a super-legislature. Far easier to avoid the work of compromise etc. when you can punt it to the USSC. Whether that’s pure laziness or something structural based on a reduction of overall party power is up for discussion.
As far as I can tell, the nonsense with Court appointments began back in the 80s, with the campaign against Reagan's nominee Robert Bork. Since then there's been a gradually ramping escalation of hostility from both sides. The GOP had to pay back the DEMs for the Bork thing, the DEMs try to smear Thomas, vetting of nominees is held up, then entirely withheld until the President leaves office, and so forth.
The politicization of the Court is a completely bipartisan affair going back 4 decades at least.
We might even say it goes back 8 decades, to FDR's threats to pack the court (see "a switch in time saves nine").
It’s not as if Bork was first. Haynsworth and Carswell were rejected by democrats for political reasons (leading to Blackmun being confirmed). Abe Fortas was rejected as Chief Justice by republicans.
Bork’s appointment problems stem from Reagan’s essentially rewarding him for obstructing impeachment of Nixon.
I’ve never understood why the Democrats are painted as the bad guys interfering in a non-partisan appointment of Bork. Nominating Bork was an insane act.
Absolutely correct. There is a process for writing laws. There is a process for amending the constitution. But instead of building a broad coalition to go and do these things they would rather roll the dice with the judiciary. And when they lose try to change the judiciary. Completely wrong headed. We need to get our legislature working. We also need people to realize that living in a democracy means that you don’t always get your way.
Yet somehow we also managed to appoint SC judges without the senate stalling nominations to prevent the president from being able to appoint them.
Let's not pretend that the current situation represents anything like "normal", and further, that we don't all recognize that bad-faith actions by the Republican party are responsible.
> That was before the Senate hijacked the normal nomination process in 2016.
Yes, it was. What's your point?
Parent poster claimed that a non-political Supreme Court isn't possible, and in reality, the Supreme Court has been essentially completely non-political for all but about 22 years of its existence
Blockade of judges started in 2001, when Democrats declared Bush illigetimate, and decided that no judges would be selected. Republicans threatened the "nuclear option" (removing fillibusters). The "Gang of 14" in 2005 wrote ideological ground rules and approved a set number of judges to keep the nuclear option from being used.
Obama came to office, and the Democrats used the nuclear option - despite the gang of 14 framework, but then said that it doesn't apply to supreme court ballots. Republicans came in and decided that yes, it did apply.
We've been destroying our own government with crap like this for the last 20 years.
Textualism is just one of many excuses to rule the way you want to, as it leaves an immense amount of leeway to interpret.
A textualist reading of the First Amendment would permit the President to infringe free speech/religion/press etc. rights, as it says "Congress", and the "no law" bit would texutally forbid things like banning human sacrifice in religious ceremonies.
Textualists always find an out when they need one.
Do you have a better suggestion that’s less partisan and less prone to abuse?
Humans will always bring bias, but I can’t think of anything better than “interpret as it was plainly written and would have been understood by the people who wrote it at the time”.
Interpreting how it would have been understood at the time is quite subjective; how do we interpret how the Founding Fathers would've considered semi-automatic rifles or Facebook to fall in First/Second Amendment jurisprudence, or how far you can push the General Welfare Clause? The Founding Fathers themselves often disagreed on such things.
> Do you have a better suggestion that’s less partisan and less prone to abuse?
I'm of the opinion that textualism, in actual practice, is a highly partisan and heavily abused concept intended to be a thin veil over "I rule the way I want". I prefer the concept of a living Constitution; per Jefferson:
> I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Did you actually read the constitution end to end? It's not that big, and if you had you would have see that such things you propose aren't in line with the text
A textualist reading of the First Amendment doesn't permit banning human sacrifice in religious ceremonies.
A textualist reading of the Second Amendment doesn't permit banning of personally owned nuclear arms.
Textualists don't seem too interested in overruling the relevant unconstitutional laws in these cases.
(Yes, I've read it. It's vague - deliberately, I'd argue - in spots, like in defining "general welfare", and some folks like to pretend things like the Ninth Amendment don't exist at all.)
We can't because our system of government is broken. If the courts are going to stick to stricter interpretations of the constitution, the US is more likely to rapidly decline or fall apart completely than to fix its problems via legislation. We have only limped along this far because the courts have been lenient on that since our ~3rd major reformulation of our government (FDR). Our system of government cannot support a modern developed-world (go easy on me, citizens of other OECD states—we're kinda developed, anyway) state, without that leniency. The only hope is that monied interests will step in and force a fix because their money's threatened—we've got issues with 70+% support from the public that can't get any traction in the legislature, so clearly "lots of people want it" isn't enough (see again: our system of government is broken) so we have to hope rich people's interests align with ours, or nothing will be fixed. Given modern stateless capital and that so many rich Americans seem to have been working on a comfortable escape route from the US in the last few years, I'm not optimistic.
I'm hopeful they will visit AUMF at some point and revert back to having the Congress have to explicitly authorize war and also not redefine things as near-war but not war. Deploying troops in active conflicts = war.
on the other hand, there have been confrontations with the judicial branch Supreme Court and others in the past, just not seriously in living memory. I was surprised to find in Wikipedia a discussion of changing the number of judges in the pre-WWII era also ("court packing").
But that's just what it is now, isn't it?
A political entity driven by political goals. With an outsized power to reinterpret laws and rules to suit a certain group's political goals.
It may have started with a certain role, but it is now a political entity. I treat it as such.
That's too complicated for most people. Although it does pain me to see people using their energy so ineffectively.
Protester: "6 unelected officials can't decide what I can do!"
Supreme Court: "That's literally what we just said!"
If Congress punts issues around indefinitely for its own political wheeling and dealing, it still cannot outsource a decision on those issues to other branches of the federal government. Whether thats to the executive branch or the judicial branch. Not hard! Except more of your elected representatives!
If consensus is impossible then that's the reality we live in, the means won't be able to justify the ends, you have to work within the consensus mechanism prescribed on every topic.
But then it’s all very self-contradictory. How are people supposed to have faith in the court when it makes a decision, reaffirms it many times over nearly 50 years, then just changes its mind on a dime?
The judicial branch has a responsibility to itself for self-consistent reasoning, which it has completely abandoned this term.
The court is not supposed to change dramatically with every election, that’s what the legislative branch does. And yet, the court did.
It’s legal of course, the court can do what it wants. But it can (and has) lost approval and legitimacy, which at the end of the day were it’s most valuable currency.
It doesn't change dramatically with EVERY election, it just changed dramatically with the last one due to a lot of judges retiring/dying off at once. Just a generational phenomenon.
SCOTUS leaned liberal (in the sense that liberal justices tend to believe in larger-scope interpretations of Constitution) for a long time, now for the first time in a while they're leaning conservative (the Constitution says what it says and if we want it to say something different Congress should pass an amendment).
Honestly I find myself falling into the more Conservative camp from a judicial perspective. I'm all for gay marriage and a woman's right to choose, but I feel like we used SCOTUS to do an end-run around Congress to get both at a federal level, and from my layperson's reading the constitutional justifications for both feel stretched to me. In the same sense that you can use creative interpretations of the Bible to justify basically anything, you can do similar things with the Constitution. That isn't how the system is supposed to work
It doesn’t matter what camp you fall into, or if you think the courts decisions in the past were “wrong” (though obviously there is no absolute right or wrong interpreting how a 250 year old document interfaces with modern society).
The court as an institution has a responsibility to maintain some sort of consistency if it wants any legitimacy.
How can people make decisions about where and how to live if their fundamental rights are changing year to year (and most recently being taken away)?
You are also not aligned with the current public opinion. The court is at its lowest approval rating ever, and that is before overturning Roe. If the court cannot maintain it’s appearance of legitimacy then it essentially fails as an institution. The court could have chosen to move more slowly, with more restraint, but it didn’t.
The whole idea of the court is to be above public opinion. This is not the first time in history that the court has made sweeping overturns of previous precedent that large swaths of voters disagreed with. It's also not the first time the legitimacy of those rulings has been challenged. Remember Eisenhower sending the 101st Airborne and federalizing the Arkansas National Guard to enforce integration? Or Kennedy doing similar for Alabama? Those actions were enforcement of a controversial SCOTUS ruling against the local public opinion.
And you can say "yeah but racists were the bad guys", but that's not how any of this works, regardless of what narratives we decide to apply to history after the fact. Did the court's lack of perceived legitimacy in Birmingham or Little Rock (among many other places that required less extreme enforcement) cause it to fail as an institution?
The court only fails as an institution when it's decisions are no longer enforced. Last I checked we haven't reached that point yet. And even if we do, worth remembering SCOTUS survived the last civil war intact.
His argument is that Congress should legislate these issues either through proper laws or constitutional amendments. Turns out 9 judges might disagree with the previous set of 9 judges. That disagreement swings both ways and in the absence of proper legislative action will become the law of the land.
It is rare for the Supreme Court to act as a second Congress. When it has, those are the cases that most likely get overruled. Additionally, old cases with poor and antiquated assumptions get overturned (not relevant here, just showing a consistency in what is and can be expected to be reviewed.)
Opposing sides of that court have said the exact same thing about Roe v Wade. Ruth Bader Ginsberg even said "this is pretty weak, going to need Congress here", no different than Justice Alito on the opposite side.
I think your perspective is very common, I think it is disingenuous for different people that should know better to promote that perspective. There is so much the elected representatives and the people can do. This crisis of confidence perspective relies on nobody actually reading these cases.
RBG argued that RvW was decided poorly but that doesn’t mean there isn’t a constitutional right to abortion. There are other sources that could be used for the right than SDP.
Ruth Bader Ginsberg is most certainly not an extreme comparable to Alito, lol.
The Supreme Court has acted as a second Congress for a wide variety of things. This is how miranda rights happened. This is how contraception was legalized. This is how homosexuality was legalized. This is how race integration was legalized. ETC.
Congress better get to work and find a rationale in the articles and a variety of amendments
(As just one, like interstate commerce, will keep it on the chopping block by the same court)
also, currently people need to be challenging laws and the court has to accept those challenges, if there isn’t political will to still challenge those things then the cases will never happen
Congress giving the EPA which is staffed by domain experts the ability to decide how much pollution is acceptable is a good thing actually. Why should congressmen be expected to figure that out?
And the court didn't rule that Congress can't do that, the court ruled that Congress didn't do that. Congress can absolutely go write a law giving the EPA that authority, and they should. But if that's not what the law says, then that's not what the EPA can do.
We can't be opposed to police creatively interpreting laws to target minorities and be okay with the EPA creatively interpreting laws to target fossil fuel companies. Just because the latter is in the service of a good cause doesn't make it legal. The ends do not justify the means--down that way lies peril.
Please don't cross into flamewar like this. It's not what this site is for, and it destroys what it is for.
Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.
I'm fully pro-abortion but I have to admit Roe's legal argument was a big stretch at best. Even RBG admitted so. I wish they'd have left it alone but moreso I wish congress made any attempt in 50 years to codify it into law.
No, wrong. Incorrect. Roe v Wade was explicitly a ruling saying that abortion should be broadly allowed, and that no government (neither state nor federal) can regulate it (with caveats). Overturning Roe v Wade has given that power back to the state government and to the federal government.
None of this had anything to do with the federal government regulating it. It was the court saying it was a right not to be infringed upon.
>It was the court saying it was a right not to be infringed upon.
Roe v Wade was ruled on the basis of the 14th amendment due process clause regarding the right to privacy. Anyone who thought this ruling was an iron-clad blanket right to abortion was fooling themselves.
Abortion is not specifically enumerated in the constitution. Just like everything else not in the constitution, it's up to States to make their own laws regarding it.
Dobbs effectively have full control to the states. Unless the federal government can make a commerce clause argument any law they make prohibiting/legalizing abortion will be overturned due to the 10th amendment.
that is a very popular perspective, which reinforces exactly what I said about it being too complicated for people.
Congress outsourced the decision to the judicial branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
Congress outsourced emissions decision to the executive branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
Again I call bullshit. There’s no way in a million years these same clowns would apply the same logic to gun control. This is all just motivated reasoning because the court wants to advance a conservative agenda
Good point. It's interesting to think about this outsourcing as a relief valve Congress uses. Feels like a function of the monetary stakes for any decision are too high. Even freshmen congressional reps are too soaked in the financial implications of their own function that they punt their appointed power to the judicial branch.
The SCOTUS is a political battleground where Federal laws can be passed as jurisprudence on the interpretation of the US Constitution, circumventing the legislative process.
Instead of laws on reproductive rights, you had a ruling even detailing the time frames in which abortion was legal.
Instead of legalizing gay marriage, you have a ruling on the federal recognition of licenses issued in individual states.
Instead of a law on lobbying, you have a ruling saying that monetary contributions to campaigns are the free speech of lobbying groups.
Instead of an organic law on weapons permits, you have a ruling saying what kinds of firearm regulations states can pass.
But people can't say this politicization of the SCOTUS is new; back when the hot topic were worker rights, in the early XX century, those were the battles being fought there, to skip Congressional debates:
The Supreme Court does not create laws. Congress does. The Supreme Court interprets those laws, making sure they do not violate the Constitution.
The Supreme Court is like a compiler simply running the instructions it's been told. It doesn't have any input over what's written.
Historically, people have used the Supreme Court to create laws, circumventing the voting process and giving 9 people oligarch-like power. This is not ideal.
There's also the general expectation the Supreme Court should do what's "right" which again, isn't a relevant metric for judging whether something is constitutional. The Supreme Court at its best is an amoral, apolitical institution.
Not the OP, but many folks treat the SCOTUS as divided into the red and blue teams, and that they have to vote like whatever party would, vs an independent check on the other two branches of gov't.
This is a very far-reaching decision. The decision is really that Congress cannot have a federal agency regulating anything unless Congress specifically votes on something like the filtration efficiency of item x in smokestack diameter y.
It has implications for other things too. For example, the post office. How about 50 individual post offices instead of a national post office since now logically the price of a stamp cannot be adjusted unless Congress votes on it, etc.
From the articles I've seen so far it seems they can still regulate individual power plants.
Does this mean that while they cannot stop new high emissions plants from being built, once a plant actually starts producing they could regulate it?
That might actually work out better, because building a plant and then having it come under regulation would probably be more costly to the plant owners than if they had went for a cleaner plant from the beginning.
So bizarre to see USA to be derailed like this, by Americans. Difficult to understand what the long game is. By hurting the country, who is benefiting?
Seriously: power plant owners and investors, and politicians involved with the same. Those politicians have spent time and money convincing their constituency this benefits them, too.
"Chief Justice Roberts’s predecessors recognized their own limitations. In the 1984 ruling that formalized the court’s policy of regulatory deference, Justice John Paul Stevens wrote that “judges are not experts in the field and are not part of either political branch of the government.” Both points are important. The court lacks technical expertise and an electoral mandate. Thursday’s decision asserting a more muscular role is thus a blow to both the public interest and democracy."
At this point, those repeating the Fox News 'this is a win for accountability by returning power to elected officials' line are just being lazy.
One of the key issues at play is that when there is no clear interpretation of a statue, that a regular can interpret that in whichever way they want. This was a legal noodle that a previous administration didn't even know would stick. The result is that the executive branch just lost of a lot of interpretational leeway.
The fundamental issue is, is carbon dioxide an air pollutant? This is not so much about interpretation of the Clean Air Act IMO, as it is about peoples' opposing views on carbon dioxide as a significant contributor to climate change.
Those who believe carbon dioxide absolutely is contributing to climate change and harming our planet would likely classify carbon dioxide as an air pollutant and thus believe the EPA has the power to regulate it. Those that believe otherwise are not going to consider carbon dioxide an 'air pollutant' and thus not subject EPA regulation.
I don't think that's at question in this case. It was decided in Massachusetts v. EPA that EPA is required to make that determination itself. Three years after that decision, EPA basically answered "we think it is."
The court isn't bringing any of that up in this opinion. They are looking only at whether Congress specifically delegated EPA the power to regulate emissions by means of "generation shifting". The majority opinion was "no, they didn't."
It's not clear to me if the court has ruled broadly regarding delegation here (we still need experts to read through the entire ruling), but they've clearly indicated that they believe that delegation is not okay with them.
Which basically means that this court will reduce the Federal government to a non-entity very soon, making its functioning absolutely impossible.
That may even be "constitutionally" correct (although no court since the founding of the US has ever found that to be an issue...this is an entirely new creation by a few members of this court), but it makes the US completely incapable of operating in the modern world.
If you thought China taking over Africa because the US govt was distracted by the Middle East (and isolationism) was bad, it's gonna get way worse when US federal agencies will constantly need to check back to see if they even have the power to do anything because the current SC has decided to curtail Federal powers in a way that every court before had absolutely no problem with.
> this court will reduce the Federal government to a non-entity very soon
This is an absurd take. All Congress needs to do is clarify that they’d like the EPA to regulate carbon emissions. That’s it. The laws regarding pollution control, many of which date back to the 1950s and 1960s, we’re not written with global warming in mind. So the court is saying the EPA needs to get permission from elected officials to regulate carbon.
And therein lies the problem. We know Congress is too deadlocked to be effective. Does the Court pushing back on them have a shot at getting the legislative branch to do their jobs?
Congress is only too deadlocked to be effective on issues that the American people are divided on. And that's basically the point of democracy.
I'm sorry to say that if you want a different set of laws, then you'll need to do the hard work of talking to other voters and convincing them you're right.
I agree that that appears to be the tactic in use.
The Court could choose to act with the knowledge that Legislative won't do things, and so behave as the last bastion of relative non-partisanship across the Federal government by allowing the overall public opinion to influence what cases they choose to hear & their eventual outcomes. That would conflict with the letter description of their job, but arguably be in support of the spirit of the system as a whole.
They're not going to go that route, though, it appears.
A political supreme court would be a Republican supreme court, presently, meaning this is actually a high point for how happy Democrats should be about textual originalism.
I don't see a lot of Republicans annoyed by anything the Supreme Court is doing - every decision they've made since repealing Roe seems to favor the right and undermine the left. Trump's list for Supreme Court appointees was written by the Federalist society, which is politically biased in favor of Republicans, libertarians and Christian conservatives.
The question is whether the precedents established in these cases will be respected and "swing both ways" in practice as they do on paper, or whether the SC will conveniently discover new legal principles to avoid them when, say, the legality of NSA's programs eventually comes up.
The entire point was to kick this to Congress, which they know can't pass anything, thus achieving their entire goal of allowing companies to pollute and do whatever they want to make an additional buck.
This tendency of people to attribute the worst possible motives to their political opponents is tiring.
I live in a deeply conservative state, but I spend most of my online time on HN. This puts me in the middle of two vastly different cultures with vastly different sets of values. I have listened to both sides explain their sincerely held views. I have listened to both sides talk about the other side.
Each group will tell me "but those other guys are evil and only want to ____!" Each group then explains their own views, and you know what? Each group's views are rational. Each group's views are compassionate. Both groups really believe that they want what's best for the world, and neither group has thought through their ideas better than the other. Both have severe flaws in their reasoning, but both also really care.
In a word: both groups are human.
I think it would do us all good to assume that most people are acting out of sincerely held beliefs, and that most people really do want to do good. I know there are exceptions, but the world would be a better place if we didn't treat those exceptions as though they were the rule.
There is absolutely *zero* reason to rule that the EPA, which has existed since the 70's has no authority to regulate the environment. None.
I'm attributing the worst to these people, because we know who they are. They want the government to have no ability to at all to put any restrictions on capital at all costs. They're simply doing it now because they have the raw power to do so.
If the authorization of the EPA was to "regulate the environment" then there is nothing they couldn't do.
The EPA was largely create to regulate pollutants based on laws written in the 1950s and 60s. It's not at all clear that the original lawmakers would consider carbon a pollutant -- it's something you and I are exhaling right at this moment.
So saying that the EPA needs authorization to regulate emissions that can cause climate change seems reasonable to me.
I've commented elsewhere on the reasons why the Supreme Court might rule the way they did. If you're sincerely curious, feel free to look at my other comments.
Here, I'll just observe that you're doing it again: you're projecting the worst possible motive on someone else's decision without giving due consideration to why else they might believe differently than you.
I see it more as a fundamental perspective that we need to give Congress a kick, which is might be excruciatingly ineffective right now, but we cannot continue with the expectation that our Federal legislature is too incompetent or disincentivized to do their jobs.
Deadlock is a feature not a bug. You want deadlock because one side or another pushing their agenda against the majority is the road to totalitarianism. If there is a deadlock, should one side of another simply dictate? Of course not.
If Trump ran the executive branch, would you want him pushing through via administrative fiat things that Congress doesn’t want? I certainly don’t want the EPA making policy — I want them doing what Congress explicitly tasks then to do. Same for other agencies. It’s the Major Questions doctrine.
Congress exists for a reason. The executive branch executes the will of the states and people as indicated by Congress. That’s the entire point of Congress.
There is a difference between a system working as intended, and a system working well. Given that the US constitution is now 230+ years old, we are seeing a huge divergence between the two.
The deadlock may be intentional, but it cannot be said that this is a desirable mode of operation when comparing to other countries that have much more effective governance and healthier societies.
Justice Scalia basically agreed with you: gridlock is essential for protecting minority interests.
> And I hear Americans saying this nowadays, and there's a lot of it going around. They talk about a "dysfunctional government" because there's disagreement. And the Framers would have said, "Yes, that's exactly the way we set it up. We wanted this to be power contradicting power -- because the main ill that beset us" -- as Hamilton said in The Federalist when he talked about a separate Senate -- He said, "Yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won't be so bad." This is 1787 -- he didn't know what an excess of legislation was.
> So, unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock, which the Framers believed would be the main protection of minorities -- the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system.
> So, Americans should appreciate that and they should learn to love the gridlock. It's there for a reason -- so that the legislation that gets out will be good legislation.
To be fair, the states are effectively countries that have joined a federation (similar to the EU). The power is supposed to be primarily at the local level, the federations primary goal is collective bargaining and protection.
Pollution may make sense to regular here, but the states / federation needs to have a large majority agree (>60%). You can't have an unelected group of bureaucrats from the EPA dictating that a large number of states can't make money, for instance.
> > this court will reduce the Federal government to a non-entity very soon
> This is an absurd take.
Indeed, OP overstated the reality. If the SC rules all day every day to reduce federal power, it would never be able to keep up with Federal power expansion.
That's not it at all. All parties agreed that Congress passed a law allowing the EPA to regular carbon emissions by setting emission limits on different types of power plants based on the best current technology available for emission reduction. The disagreement is whether that allows the EPA to set emission limits which are impossible to achieve, with the goal of forcing fossil fuel plants to shut down or subsidize renewable sources.
> All Congress needs to do is clarify that they’d like the EPA to regulate carbon emissions
That is one interpretation. The dissenting opinion of Kagan argues that carbon emissions are covered due to Section 111(d), as this covers all pollutants.
> That may even be "constitutionally" correct... but it makes the US completely incapable of operating in the modern world.
The Constitution was designed to be amended to adapt to a changing world. Let's amend it! However, it is the role of the Supreme Court to apply what the Constitution DOES say, not decide what it SHOULD say.
Lol good luck with that. Zero chance 3/4 of the states agree on literally anything. The culture wars are in full swing, owning the other side is more important than being effective.
The last amendment to the constitution was in 1992, so amendments aren't impossible. The story behind the 27th amendment is pretty amusing. An undergrad student wrote a paper saying that the proposed amendment was still live and could be ratified even though it had been proposed in 1789 and not passed, but got a C grade on the paper since his TA disagreed. Annoyed by this, the student started a letter-writing campaign which eventually succeeded in getting the constitutional amendment passed. Years later, his grade was changed to an A to recognize that he had been right.
The political outlook has changed a lot since 92. Newt Gingrich was not yet speaker at that point, the republicans strategy of “never agree to anything democrats propose no matter what” was just getting started. I suspect passing that amendment would be much more difficult today.
Alternatively, a simple majority in Congress could enact the regulations that were deemed not enforceable by the EPA alone. If a majority in Congress won't authorize it, should they be enacted? I guess it depends on your level of commitment to democracy as an ideal.
Before CO2, you had pollutants like NOx, which were toxic pollutants, and CFCs, which were pollutants but not toxic. CFCs were considered pollutants because they damaged the Earth in a way that would have a negative impact on human health, but non-toxic because their harm was not directly effected on the human body. CO2 would be the kind of pollutant that CFCs are. (CFCs are toxic in high concentrations, but the mechanism of their harm when released into the environment is not toxicity.)
The topic is about controlling proportions of different molecules in the environment to maintain a preferable quality of life for citizens of the world.
> Lol good luck with that. Zero chance 3/4 of the states agree on literally anything. The culture wars are in full swing, owning the other side is more important than being effective.
The problem is that a lot of people want to use amendments to force non-consensus policy preferences on the whole country. For many decades, it seems like Supreme Court decisions have frequently been serving as the constitutional amendments those people want in all but name.
That's one of those things that is technically true but sweeps a lot of the practicalities under the rug. The constitution was not designed to be changed, it was designed to be VERY DIFFICULT to change. That has important implications when the court suddenly changes or repeals numerous rulings about it all at once. It will take years or decades to adapt.
Have you read the decision? I haven't read the whole thing, but it consistently talks about what Congress intended to do. Here's a relevant extract, in which the EPA itself acknowledges that to the extent Congress expressed intent, it went against the EPA's rulemaking:
> EPA argued that under the major questions of doctrine, a clear statement was necessary to conclude that Congress intended to delegate authority "of this breadth to regulate a fundamental sector of the economy." It found none. "Indeed," it concluded, given the text and structure of the statute, "Congress has directly spoken to this precise question and precluded" the use of measures such as generation shifting.
The problem here is that what most people here wish Congress intended to do isn't what Congress actually intended to do, because they couldn't build the political will to do it. I'm sympathetic to that view, but it's not the Supreme Court's job to fix Congress's deadlock.
Have you read the dissent? it has clear legal answers to the questions being asked, including how the supreme court is ruling against non-existent policy as a political statement. The EPA guidance quoted exists because the EPA decided to move in a different direction before ever applying the Clean Power Plan.
How does issuing preemptive and overly broad rulings against regulatory action that doesn't exist align with SCOTUS "just doing their job" as many people are asserting?
It largely had been up until 1984, when Chevron v NRDC was decided in a way that yielded a _deference_ that previously didn't exist in determining the scope of executive branch delegation authority via statutory interpretation - e.g., "Can the agency I've tasked with regulating John also regulate the Boy Scouts of America, of which John is a member?" and "If a regulatory agency can regulate John, can it determine for itself that it may also regulate John's best friend Janet just by reinterpreting the statute for itself without input by the executive or congressional branches?"
The intent of the EPA is to regulate things that negatively impact the environment. To use your analogies, the EPA can by the word of law regulate John, and by the intent of law should be able to regulate BSA and Janet if they are operating in ways that negatively impact the environment.
If you limit an entity to only ever operate by the word and not the intent of law, then it's trivial for malicious (more accurately greedy) actors to skirt regulation, because the government will never be able to keep up with the exploitation of loopholes.
Kind of like how the IRS can tax bitcoins, despite cryptocurrencies not being explicitly written into the constitution or tax laws.
That's not how it works. The IRS can tax profits earned from transactions in any medium of exchange (bitcoin or anything else) because Congress has specifically granted them that statutory authority. The EPA does not have blanket authority to regulate anything that might happen to negatively impact the environment. Congress could give them that authority, but has chosen not to do so.
It isn’t hobbling the federal government. It’s strengthening it by giving powers to Congress and the states where it belongs. It’s hobbling the executive branch to prevent them from ignoring the will of the people via Congress.
The problem is that pollution easily becomes someone else's problem. If Wisconsin decides that Lake Michigan should be it's dumping ground, what recourse is there for Illinois, Indiana, or Michigan if there can be no federal oversight? Inter-state war is not really something I look forward to.
Because we are now at the point where we can just make shit up as we go along and anyone who can string together 3 words has a coherent argument for whatever they want.
Yes, it's ambiguous and there are no good answers. Conservative justices say "unless the Constitution says it plainly, it's a no". Liberal justices say, "even if the Constitution doesn't say it plainly, they kinda imply it, so it's a yes".
I do find it amusing (-ly hypocritical) that the big exception to this conservative position is the role of the Supreme Court itself. The entire concept of "judicial review" which is being employed here to allow the justices to strike down laws which they feel are outside the constitution is, famously, not a thing explicitly described in the constitution. Rather it's the very height of "well, it kinda implies we can do that".
The role of the court is whatever the hell it pleases. It is the court which gets the final word on what they should be.
They do write opinions, but they might as well not since they answer to no one. No one can hold them accountable for blatantly contradicting themselves.
They can very theoretically be impeached, but that's a 100% political process - it's equally (im)possible whether they're "fulfilling their role" or not.
It's not a very smart system. I'm hoping Americans start questioning some of those patriotic pieties they're taught in their civics classes as a result of the mask-dropping that's happened lately.
> The role of the court is whatever the hell it pleases.
Sort of seems like it. It was only in the early 19th century that the Supreme Court gave itself a) the power of legislative review, and b) declared itself the supreme interpreter of the constitution.
Since we've been busy upending precedent, why not upend these two precedents as well?
> They can very theoretically be impeached
In the past, one SC justice resigned under the threat of impeachment over his financial conflict of interest. At least one of our justices has been in violation of ethics rules around financial (and political) conflicts of interest. Several other have lied under oath at their confirmation hearings. I'd at least like to see Congress open some investigations as the first step towards impeachment.
But you're right, it is a political process, and I think the democrats are more than happy to simply fundraise off of this rather than exercising any check at all.
> No one can hold them accountable for blatantly contradicting themselves.
The democratically elected Congress can pass new laws to overrule most SCOTUS decisions. A few decisions on constitutionality would require an amendment, but those are the exception.
The political will is fairly easy in terms of broad democratic support, but following the rules as they're currently set out, which gives small groups outsized power makes it hard.
I'm not sure confusing those two things is helpful though.
There's two mechanisms to keep the constitution alive, amendments and rulings.
It's both normal and necessary for judges to consider the complexities and competing interests in cases to determine how the law should be applied. The constitution does not need to enumerate every single right for the court. See the 9th amendment, it specifically says that.
It's best to think of the constitution as a framework for how to think of our rights.
An attorney friend of mine summarized it by saying that the Supreme Court said it's OK for the EPA to dictate particular emission levels for power plants but not OK to require a plant to change it's method of power generation.
Wow... if this is the actual impact, that seems... fair. Yeah, you can regulate pollution levels but not go a step further and regulate the inputs that create pollution, unless that power is vested in you by Congress.
So CO2=0 would be legit? That seems against the spirit / motivation of the court at present moment. My third-hand impression was that they ruled that regulating CO2 at all was outside their responsibilities.
The deal is that Congress can delegate administrative authority to agencies like the EPA, but answers to "major questions" must be backed up by legislation. Where is the line? Wherever the Supreme Court decides it is.
For more information on the topic, you can look towards previous decisions creating the modern statutory interpretations (that have been pretty much declining in favor since their inception)
The two main cases that framed how much (or little) _deference_ the courts should lend in matters of dispute broadly derive from Chevron v NRDC[1] and Auer v Robbins[2]
Yes. The US Fed Govt was never intended to have unlimited and arbitrary power, but POTUS candidates make big promises they don’t really have the power to deliver and try anyway. Right now it still has power very very close to that because even once a mook is elected and finds out he can’t really say, run the economy, he’ll still end up expanding the power of his branch of government falling short of the goal.
The path forward is clear for every single political ideology working within the legal Constitutional framework of the United States: get popular support, build a political coalition and then pass laws. Anything that tries to take shortcuts around that process deserves the axe.
Alternatively, there's always the opportunity to reappropriate Andrew Jackson for the modern era and say, "John Roberts made his decision, now let him enforce it."
Yes, the ironic thing is that it's not even clear from the US constitution that the court should have the sweeping powers it has, and it certainly hasn't always had them. But like the pope declaring that the pope is infallible, they have decided that they should. And since elected politicians have found it expedient to play along for a long time, now it's not easy for them to go back.
Lots of fear mongering here. The federal government has always been intended to have limited powers & courts have not always been pro-federal gov. That’s an unreasonable thing to posit.
What does China and Africa have to do with this? The federal government is explicitly given powers of national security & defense & diplomacy. States don’t get to have embassies or choose foreign policy.
I'm just dumbfounded by the fact that the US Supreme Court has no term limits, age limits, or reasonable impeachment mechanism for justices that have unethical behaviour or outright lie on their job interview.
The USA is the most "at will employment" country in the world until it comes to the most critical functions of a government. It's absolutely crazy to me.
Term limits are possible with a congressional vote; an impeachment process already exists, and the only time it was invoked against a Justice was 1804.
Don't mistake politicians' unwillingness to do something for an inability to do it.
This is the entire purpose of SCOTUS. They are not supposed to wade into politics. It is the same beef I have with Powell and his giving in to political demands. There is a reason you have the power and independence you do. It is not to please everyone.
I get that people will disagree, but ends do not justify the means.
Yeah, they're ahead of you on that one. Already zapped the Voting Rights Act and ruled that gerrymandering is legal. They're pretty competent at setting up the doom loop for Democracy - that and cutting taxes for the wealthy.
I do what I can. I donate to principled and pragmatic political campaigns, I vote, and I encourage others to do the same. I've just heard too much doom and gloom that never turns out as bad in practice as I've been led to believe. c'est la vie. One must cultivate one's own garden.
I mean, I see the inflation now, I've lived through a climate disaster already (and quite the opposite of what I expected from global warming). I see the financial meltdown, the accelerating costs of living such that most people in my generation are actually poorer (and less healthy) than Boomers or Gen Xers. Also the president nearly had his vice president hanged by a crowd he whipped up. That last one might have had some entertainment value at least, but seems like it came pretty close to gloom and doom, no? Oh yeah, and the plague that apparently wasn't too bad because it only kills your grandparents and apparently they've had their time. And then the rich conservatives trot out their apparatchiks to tell you that actually you're just a sourpuss because your phone is too entertaining and your TV is too big and that's the most condescending part of it all I think. So yeah, not much of an optimist here I suppose.
You think that the court is principled? You think that will work?
A subsidiary of the "just world" hypothesis is what they call in Russia the "just tsar" theory. The theory that the final legal authority, the tsar, is reasonable. He just doesn't know what all his bloodsucking boyars and rampaging Cossacks are doing.
… based on a proposed bill that never became law.
The Supreme Court based their judgement on the Obama era Clean Power Act which never became law.
That’s how out-of-their-way to cause trouble this court went.
This Supreme Court is going out of its way to be destructive and cause harm.
Of course, this will come off as reactionary, but I gotta say it.
I don’t understand the logic behind the Supreme Court. How can such a tiny group of people, until the day they die, that weren’t appointed by the people, make decisions that affect all of human society?
This decision seems largely irrelevant to me, because the Democrats with their majority and White House could pass new legislation next week to authorize the EPA to do what it needs to do.
Isn't there a couple of Democrats in the Senate (who also happen to be anti-green due to blatant conflict of interest - why the hell is a senator with financial interests in coal allowed??) who refuse to allow the majority to do away with the filibuster that forces the need for a supermajority? So nobody has a majority?
> In a 6-3 ruling, the court sided with the conservative states and fossil-fuel companies, ...
What a surprise. How many Republicans are on the Supreme Court again?
> ... agreeing that Congress had not "intended to delegate... decision[s] of such economic and political significance".
Apparently the Supreme Court does not believe that the Environmental Protection Agency was intended to be given agency to protect the environment. It's like a The Onion parody.
> Attorney General Eric Schmitt for Missouri - one of the 19 states - called it a "big victory... that pushes back on the Biden EPA's job-killing regulations".
There the Republicans are again, beating the jobs drum in a period of historic lows of unemployment. Small government to them means big government where they want and small elsewhere, e.g., Congress and the Supreme Court acting as protector for corporations.
It’s very frustrating to see how some HN readers are allowed to vote others comments up and down while the rest of us have no rights at all.
It feels like when a playground bully puts their long arm on your forehead to prevent you being able to reach them, while they are free to punch you and abuse you at will.
Unfair
I already heard the excuse about a probationary period but I’ve been stuck in this state for awhile now and it’s not OK
Everyone stating this is a good thing because it's not the Supreme Court's job to do xyz are conveniently ignoring the fact these decisions are being made due to tribalism, not out of some concern for rule of law.
These people could be part of their respective tribes because they believe that the rule of law dictates one thing or another. Many of these Justices in the past have followed their own philosophies, which happen to align with one party or another.
We just happen to have people who have a very... different... idea about what the law means than their predecessors.
The actual decisions do not reflect that at all, and they go into great depth to explain the reasoning, none of which seems remotely ideological (other than legal ideology which is orthogonal to political leaning).
Like the school prayer case from yesterday where Gorsuch was literally making things up in his opinion, so Sontomayer included photos of the offending action to show that Gorsuch was making things up in his opinion?
The legal trappings of the conservative positions have been explicitly merely legal trappings.
How do you know this? Do you disagree with the outcomes or agree with them? If you disagree with the outcomes then it may come across as calling people who disagree with you tribal because they reached the "wrong" conclusions.
Also, even if the surpreme court was completely correct to do this: why is this their focus? Why is this so much more important than the the thousands of other cases waiting for their attention?
These disruptive rulings are making the Supreme Court irrelevant and dangerous to running of the country. They will push people to destroy it and rebuild it into something completely different.
TL;DR? My best attempt:
The federal law did not give authority to EPA to control the type of energy (fuel) used. It only had authority to set emission guidelines.
That's the gist of it but imagine the logical consequences. What the court is saying is that the EPA has no authority to stop the burning of anything, it only has the authority to apply the best-known commercially viable technology to make the emissions of that burning as clean as can be. So, for example, if you wanted to incinerate lead ingots - and let's just ignore the reasons you'd want to do this for debate purposes - the EPA cannot stop you, because there is no commercially viable (i.e. profitable) technology that would make the emissions any cleaner.
Now you may think this is a crazy example but there's an Alcoa facility in Texas that originally burned lignite but long since ran out of the good stuff and has just been burning dirt for decades. It is one of the largest point sources of air pollution in the world, and what the court is saying here is the EPA has not been empowered by Congress to stop that. If Alcoa wants to burn dirt, then fine.
That’s not false, but it really misses some important detail:
namely, that generation shifting cannot be a “system of emission re- duction” under Section 111. 985 F. 3d 914, 995.
In other words, telling a coal plant operator to reduce their plants emissions by switching some energy production to other sources is beyond the EPA’s legal authority.
However, given that you evidently prefer a single (technocratic?) world government I suppose you might welcome the further erosion of the US republic? In that case damn-the-consequences-do-what-I-want is an understandable position to take, even if it’s inimical to the long term health of the republic.
The EPA's power to cut emissions has always been limited. That's always been part of the problem. The current Supreme Court didn't suddenly create those limits, they just adjusted the dial a little.
TL:DR; the EPA has never 'protected people from emissions' well. This article seems to ignore all that history and focuses on the hot take of ruling reactions.
The fact that people can't see that the conservatives are basically advocating worldwide for short term economic growth in exchange for basically our future is appalling to me.
I am afraid we will see an immense amount of instability, increased poverty, mass migrations and authoritarian regimes rising up due to the fact that we couldn't manage to convince people that those parties do not care about them.
In a previous post I wrote that conservatives everywhere use moral issues to make people enraged in order to get vote, and in exchange to that they use their power to help the rich get richer. This is exactly what I was talking about. Those Conservative judges were appointed by a President elected by people that rallied behind him hoping to see Roe overturned, and in exchange for that they also gave them a free pass to alter the US political system in a way that is favourable to the Republican party, i.e. the party of big industry and capital.
This is also another small hint that "countries" are a stupid concept - we must stop to pretend that a single country is an island, everything has consequences that irradiate and reflect on the rest of the world, and it's stupid to think everyone can be a ruler of its own tiny spot of our planet.
Countries are like homes, but they aren't cottages in the middle of nowhere, they are flats - if you set your own house on fire, everyone will suffer, everyone will lose something, if not everything.
"$countryname first!" and Nationalism in all its forms is basically just a more general form of Fascism.
This sounds like GPT-3 trained on partisan talking points. If it's not, isn't it weird that you didn't notice that Democrats keep promising to codify Roe but never do? They had 40 years!! If they solved the problem, they wouldn't have that to campaign on and raise money with. Keep people enraged to get their vote. You're spot on about that, but it's how both parties operate. Never solve the problem so it'll be there next cycle.
The Democrats have rarely had a filibuster-proof majority in congress that would allow them to codify Roe. And they have been working under the assumption that it was a settled issue. As I recall, even some of the recently appointed Supreme Court justices were under that impression as well. At least until they were sworn in.
Even when they had a filibuster-proof majority, they didn't have a majority that believed in abortion rights. Some of the democrats in obama's brief filibuster proof session were pro life. Even now, at least 1 democrat senator is pro life.
Yep. Wedge issues. I'm glad the SC is trying to force congress to do its job. If only someone would do something about executive orders, we may make some real progress.
There is a long history and philosophy around the proper roles and relationships of a legislature and court such as SCOTUS. The current Court could claim to make decisions upon a strict originalist philosophy of jurisprudence. Maybe they think they do, and maybe they really do. But...
Take an open-eyed look at history. Look at the process by which the justices are selected. This shows a different ultimate motivator: conservatives have been working for decades to pick justices whose claimed philosophies align with the conservative agenda.
I don't care the motivation. The SC shouldn't be doing congress' job. Congress got burned because they've been complacent.
RvW has always stood on tenuous footing. We've known this. Congress has literally had decades to do something and they chose instead to keep the status quo. Why? Because the republican threat helps democrat voter turnout. Same reason nothing is being done about the failed drug war.
> RvW has always stood on tenuous footing. We've known this. Congress has literally had decades to do something and they chose instead to keep the status quo. Why? Because the republican threat helps democrat voter turnout.
If by 'tenuous footing', you mean that there is not legislation protecting it, I understand what you are saying. However, per stare decisis (respecting judicial precedent), the general idea of Rowe has been settled and stable for a long time. Public opinion has been relatively stable too.
You said "Congress has literally had decades to do something and they chose instead to keep the status quo.". Congress is a body, yes, but it is also comprised of parties and coalitions that disagree. Saying a "split-brain" body "chose" to keep the status quo isn't a very useful way of thinking about it. A better explanation (one that conveys more information about what is happening) is that the parties strongly disagree, and the party lines have gotten firmer over time.
In February (this year, 2022), the House passed a law codifying abortion with Democratic support. It failed the Senate 46-48 due to Republican opposition.
That's unfortunate. The Supreme Court can only function well if the justices are predominantly motivated by judicial, not political, principles.
If the court plays lip service to judicial principles while ultimately being driven by politics, it is a puppet and cannot serve as a proper check and balance.
Yawn. This is a cliche and talking point you know, to use your own language.
This statement does not address the issues head on. If you have a theory of jurisprudence, say it. You don't need to water it down with over-generalizations.
My comment was questioning the language of the other comment. It said "Congress got burned because they've been complacent.". This is a bizarre way of thinking about it.
In general, I push back against language and metaphors that don't have much value. We get to choose what metaphors we use. So we should choose good ones. Fixating on, i.e. "A versus B" is a competitive metaphor. But the branches of government are not competing against each other. They are working as part of system to (hopefully) maintain some semblance of a functioning representative democracy.
When one branch exercises a check against another branch, I don't think it is useful or interesting to say that it "won". I don't want us to start treating any of the branches as competitors in some kind of game or sport. I don't have much joy when, e.g. the House votes to impeach a President. It might be wise and justified (or not), but it is hardly a cause for celebration. But at times, it is necessary duty.
More specifically... No, Congress didn't "get burned". First of all, the composition of Congress has changed significantly over the last decades. Second, to my knowledge, the Dobbs ruling was not directed in any way at Congress or its legislation.
Please do not equate the parties. It is incredibly naïve to see two parties that aren't perfect and somehow wave your arms and say they are equivalently bad. They are clearly different both in terms of their policy objectives and their willingness to stay within the realm of truth and science.
Please do equate them. Neither stays at all within the realm of truth and science. I can't believe anyone still genuinely thinks either party does in the year 2022.
You are defining an arbitrary boundary and making a false dichotomy. Do you understand what I'm saying?
Stop putting them in the same category. This is useless and nondescriptive. Here's what I mean by that : if you were to build a machine learning classifier with a decision tree algorithm, what do you think some of the most important differentiators would be?
Tell me which party tends to acknowledge scientific evidence more often.
A fool sets impossible standards and moans that everyone falls short.
Accept reality. Choose from the better options. There is no perfect except in mathematics (and maybe some physics we don't know yet)
Your attempt to compare the Republican and Democratic parties creates a false equivalency. This is demonstrated by the January 6th insurrection fomented by a Republican president and covered up by the Republican establishment, which has no analog in the Democratic space.
Democrats do bad things. The bad things they do aren't as bad as what Republicans do. It's like having both pancreatic cancer and a zit, one's worse than the other.
Roe v Wade becomes codified, abortion becomes legal in all 50 states, immediately there is a lawsuit, they appeal to the supreme court, supreme court chooses to hear the case, supreme court repeals the codified Roe v. Wade.
IANAL but how does codifying Roe v Wade change this?
The decision made by the Supreme Court was that abortion was not a constitutionally-protected right, I doubt they would hold that allowing abortion was somehow unconstitutional. If that's what they wanted they would have gone ahead and declared that in their recent ruling. Instead they explicitly stated this is a matter for the legislature to decide.
You act like this was completely up to the Democrats. Please point to a time in history when codifying Roe with legislation would have passed the Senate.
How would you apply this to the Roe v Wade decision overturn? I'm not saying it is infeasible to apply it to that but I am curious to see the argument that that was explicitly focused on laws and not outcomes (especially given some of the language used by some of the justices to refer to abortion)
I'm a software developer, not a legal scholar. Anything I said that could be considered intelligent regarding analysis of SCOTUS opinions would be nothing more than regurgitation I've heard from another source in the media.
As such, I will decline to offer anything beyond what I've already said.
> but what it has been doing is empowering democracy, which people are nominally for.
I know what you are trying to say, but it is too narrow.
If you think broader, the above is a laughable claim. Overturning the current understanding of laws is jarring to democracy. (Sure, there are times when it is morally necessary.) Why? Previous legislatures operated under the assumption that the Clean Air Act worked in a certain manner.
The Supreme Court has effectively overturned previous democratic work knowing full well the practical implications.
Yeah supreme court is doing its job just fine. Main issue seems to be Congress peeps voting party line with omnibus bills instead of discrete policy being legislated that they can vote freely on with just their constituents in mind. And then of course the money and corporate capture. I don't think elected members even write the bills anymore.
A number of people on both sides of the issue have noted that the country was on an arc toward more liberal abortion laws before Roe. When SCOTUS steps in and decides issues without a solid Constitutional basis it interferes with the consensus process of democracy and produces division. The same is likely true with the other privacy rulings.
Have some faith in people. Inventing rights and privileges autocratically is definitely problematic in a democracy. It's better to do the work of persuasion. We all have to live together. Note as well, the number of countries who have arrived at gay marriage through legislation rather than judicial fiat. It's a more respectful way to go.
'More respectful'? What was respectful about states denying people the ability to see their partner in the hospital because they have the crime of being gay? Or being denied the ability to participate in basic rights because they're gay?
Or is it just because it doesn't inconvenience you? Like these are all things that are very fresh in the memory of anyone gay that's lived in southern or red states. It's not a democracy if you have a bunch of people you treat as second class citizens.
Majority rule literally the definition of democracy.
This is obviously in conflict with minority rights.
If you care more about minority rights than democracy, fine. Lots of governments have limits on majority rule. The USA constitution is a famous example.
But those limits are limits on democracy. Which make them anti-democratic.
The more strictly you protect minority rights the less democratic your society is.
> It's not a democracy if you have a bunch of people you treat as second class citizens.
That's the purest democracy there is. A direct democracy that let people vote on absolutely anything would always produce that result.
Judges use outcomes to interpret the law all the time. There's nothing, on it's face, invalid about that approach. You may personally disagree with it, but then you'd have to justify why the rest of us should believe in a legal philosophy that's clearly going to degrade our quality of life by destroying the environment.
It depends what you mean. Of course the mechanisms under their control are mostly about legal interpretation and Constitutionality. If you read a lot of Supreme Court opinions you'll see that the justices do care about outcomes to a large degree.
It seems to me like they are considering outcomes. I'm not sure how we know for sure if they are or not, we don't know what's in their heads. But this court appears to many like they've got some outcomes in mind and are fitting the law to them.
And, I mean, Trump literally said that he could guarantee he was going to appoint justices that would overturn Roe, and then they did, as he guaranteed. That's an outcome, right?
The Constitution doesn't say that the Supreme Court is the final say?
Constitution, Article 3
> The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
If your question was intended to claim that the Article you quoted gives The Supreme Court ‘the final say on legal interpretation,’ I’m interested to know which words in that Article you believe gives that say.
I’m not a conservative, but this ruling is good because it’s interpreting the law as written, which is the only fair way to apply it. Reducing the politicalization of the courts by getting judges away from ruling based on their desired policy rather than the law is probably insufficient, but it’s necessary to maintain general confidence in the system over time.
If you want policy changes to handle whatever real or imaginary threats you believe you face, then the correct way to deal with that is through the elected branches. They are the ones meant to make policy.
You are oversimplifying. Generally speaking, most of the work of SCOTUS is reigning in the Executive because of overzealous regulators. The US regulatory framework is theoretically designed to be based in law, made by the legislature, not the whims of unelected bureaucracy.
Congress delegating it’s power is suspect at best, and likely unconstitutional entirely (something something, War Powers Act). Congress created the EPA through the power of the purse, but it’s operated by the Executive, and therefore is not and should not be empowered to unilaterally create regulations with the force of law. Making law is Congress’ job.
I agree and the executive branch has at least two major roles in the constitutional law-making process. First is the presidential veto, and second the Vice President in his or her office of President of the Senate can vote on bills from time to time.
I interpret your comment to mean you agree with this decision.
...yeah no, obviously not. The law has meaning and that meaning is stable. Words mean things. If you are stuck in "Anyone can interpret anything as anything else" land you have fallen prey to being too clever.
> Anyone can interpret anything as anything else, this is proven over and over throughout history.
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
I suppose that may be a workable political system, but I'm not certain it will produce outcomes anyone will like.
There's something to be said for rules and policy being adapted to a locale. What's right for people in one region might not work for some in another. You'll get a tyranny of the majority in much of your life the broader you go away from local governance. I agree there's benefit to have federal and international rules and policy but it's more nuanced than just saying sentiments for keeping power at a national level are fascist.
The fact that people can't see that the conservatives are basically advocating worldwide for short term economic growth in exchange for basically our future is appalling to me.
I am afraid we will see an immense amount of instability, increased poverty, mass migrations and authoritarian regimes rising up due to the fact that we couldn't manage to convince people that those parties do not care about them.
In a previous post I wrote that conservatives everywhere use moral issues to make people enraged in order to get vote, and in exchange to that they use their power to help the rich get richer. This is exactly what I was talking about. Those Conservative judges were appointed by a President elected by people that rallied behind him hoping to see Roe overturned, and in exchange for that they also gave them a free pass to alter the US political system in a way that is favourable to the Republican party, i.e. the party of big industry and capital.
This is also another small hint that "countries" are a stupid concept - we must stop to pretend that a single country is an island, everything has consequences that irradiate and reflect on the rest of the world, and it's stupid to think everyone can be a ruler of its own tiny spot of our planet.
Countries are like homes, but they aren't cottages in the middle of nowhere, they are flats - if you set your own house on fire, everyone will suffer, everyone will lose something, if not everything.
"$countryname first!" and Nationalism in all its forms is basically just a more general form of Fascism.
> I am afraid we will see an immense amount of instability, increased poverty, mass migrations and authoritarian regimes rising up due to the fact that we couldn't manage to convince people that those parties do not care about them.
This has already been happening for a decade now. But it has been limited to poorer regions, such as north Africa, south-central Americas, and war-torn regions of the Middle East.
Most of this instability was precipitated by food prices, which wealthier nations found themselves immune to. But they are no longer immune, food prices are spiking by double digit annual percentages all over the world. Fuel prices too. The G7 are already in talks about how acquiesce to Russia for their natural gas.
These guys are on a roll. Yesterday was giving states legal rights over indigenous nations. Today this.
I was already planning to expat soon, but this all makes me want to try to hurry that timeline. Sorry to those of you that are stuck in this hellscape.
I'd like to caution other people who are feeling despondent and thinking of leaving that this is exactly what they want. They want you to give them your homes, your relationships, your friends, your resources, your job and everything you've cared about.
So instead of being cynical and celebrating people who are abandoning ship, which I totally understand, we should instead spend time uniting people in opposition. Stay where you are and fight. It's your country. It's mind-blowing that people won't engage in trying to actually do something, even something as simple as helping a campaign, or donating money, but instead they're like "well I'm going to just give up and spend all this time and effort moving to some other country where I also won't uphold any civic responsibility". Madness.
Barring extreme circumstances‡, one should not moving from the country of one’s birth, but to the country of one’s choice. I emigrated from the U.S. two decades ago to Canada, because of the person who later became my wife—but I had to decide that I could live with Canada, too. Family aside, nothing in the U.S. either held me to America or was pushing me from America.
The process took almost two years, and it was almost five years before I got Canadian citizenship. As I understand it, it would take longer now.
My wife and I are considering moving to Europe or the U.K., but it would take time for this move to materialize, and we need to figure out what it is that we want (especially given our ages). Such a move is not likely to happen for two to five years at this point.
‡ There are exigent circumstances where it becomes safer to leave one country with little care for where one goes, as long as it isn’t worse. I fear with the extremists taking power legitimately and illegitimately and pushing toward their increasingly apartheid goals, there will be larger classes of people who could legitimately become refugees from America, especially if "liberal" states turn extremist—as they seem likely to do, since the divide here is (mostly old, mostly white) rural vs (mostly younger, mostly diverse) urban.
Sitting where I sit, I truly think that America is fucked, and am doing what little that I can to make sure that Canada does not follow in its footsteps, but we have our homegrown extremists whose crypto-christo-fascist messages are being treated with bemusement to respect, and even being promoted by fools like Poilievre.
Yeah, to be clear, I'm not running away from America. I'm in a similar situation where my partner wants to move to Germany (in a couple years), and I think that sounds like a swell idea.
We can't take the natural resources, benefits of geography, and nuclear weapons with us, so those we leave behind will inherit a very powerful nation. Something to think about.
I've been pondering this myself. At a certain point, in places going downhill, like Venezuela or Russia, the smart move is just to get out. Tough to decide when that moment is, though, I guess.
It's not just about chronic malignant threats like those countries; it's also about acute threats. Take as an example, if you were Ukrainian, you had about 2 months of runway during which there was ample evidence Russia was going to invade Ukraine and the country would likely be flattened. And yet, when Russia did invade Ukraine, there were throngs of people trying to escape. I'm not talking about people who are disabled or immobile, I'm talking about middle class people who simply thought they had more time and didn't want to disrupt their life for nothing. See also Afghans in Kabul, who thought either the Taliban wouldn't win or they'd have several more months to get their lives in order.
This is also a popular trope in fiction. In the recent Handmaid's Tale series, there are several episodes devoted to life immediately before the fall, and what you see is a lot of evidence stuff is going to hit a crisis point, and a lot of people insisting that it hasn't quite yet.
Obviously the threshold to act has to be fairly high -- and I'm not saying America is Kabul or Kyiv or Gilead -- but I think there's nothing wrong with listening to the part of your brain that says "wow, it feels like the shit is imminently going to hit the fan". Because if you wait until it actually does, you'll have significantly less capacity to act.
There are also options beyond leaving the country. Some places are physically safer and physically more isolated from threat than others. For example, in the event that there is a rapid institutional collapse in the United States, it seems likely that Hawai'i would be among the places most likely to endure a little while extra or to most easily facilitate leaving the country. Areas near unguarded border crossings on the northern border also have an appeal in that regard. I think the right degree of seriousness with which to take something like this is not so much "I should move to Hawai'i tomorrow in case there's a civil war" and more "If I can work remotely in Hawai'i or if a job opens up, I might gain some degree of personal safety/sovereignty by moving there."
Personal context: I am a non-American. I spent most of the 2010s living in the U.S., and I emigrated to another country in early 2021. The pull factor to emigrate was a job opportunity abroad that was great and that my wife agreed would be a fun way to spend a few years, but the push factor to emigrate was significant uncertainty about the institutional stability of the U.S. We were setting up our paperwork just as the Capitol Insurrection happened.
I think some kind of dramatic failure less likely than a gradual descent. More like Hungary, Turkey, Venezuela or something than some of the more, uh, 'exciting' examples from history.
Of course, things going badly in the US is going to have spillover effects everywhere else too, so that's something to keep in mind. I'm not sure how isolated various places would be.
As much as these things can be objectively measured, that's certainly correct. But the trend is not a good one, and the US is considered a 'flawed democracy' rather than a full one according to this: https://www.economist.com/graphic-detail/2022/02/09/a-new-lo...
I honestly couldn't live living in the US, I just couldn't exist there knowing that my tax dollars and simply my existence there helps bolster such violence in other countries, good that I don't need to with how common wfh is these days
No place is perfect. Much of the fossil fuels that European countries consume was coming from Russia and is paying for the horrific things Russia is doing in Ukraine.
But narrowly, I'm talking about democracy itself, which is not doing well in the US.
The main thing would for us to be under crushing US sanctions. However, because the US needs their oil now, things may be loosening up and Venezuela may do a lot better.
> We should instead spend time uniting people in opposition. Stay where you are and fight.
That is definitely one approach, and one I'm hoping to see through. But simultaneously you have to acknowledge that there could come a point where it's time to jump ship. That point is going to be different for everyone. Recent events have pushed some past that point. That doesn't seem hard to grasp.
> It's mind-blowing that people won't engage in trying to actually do something, even something as simple as helping a campaign, or donating money...
Have you been paying attention? People in this country have been more engaged over the last few years than at any point in my lifetime, and at this point the ship is still sinking.
Every time there is a school shooting, there is outrage and no change. Proud boys terrorize another fucking library event, and there aren't even reports of a single arrest. Women's rights being slaughtered and we get to hear how we need to vote. Another hearing laying out the obvious coup attempt on Jan 6th, and no action taken but another news headline.
This is just a snippet of the last ~30 days. 1 short month. I don't argue that it's my country. My country just looks like a real shithole lately.
> but instead they're like "well I'm going to just give up and spend all this time and effort moving to some other country where I also won't uphold any civic responsibility".
This is such a weird take. Consider employment. You can join a startup, work your ass off, cross your fingers, and hope for that big payday. High risk, high reward. Alternatively, you can join a mature company, collect a comfortable paycheck and moderately help to steer the bigger ship.
Right now, the US is looking like that startup. You can work your ass off, and it may give you a great payoff in the form of opportunity. But it's looking increasingly like it's going to fail. Alternatively, you can move somewhere that has all the big stuff in order, and you get to work on the small stuff that still has effect while not worrying as much about whether you're one injury away from bankruptcy.
Who knows? Maybe if we vote harder it'll turn around. At this point, I'm inclined to believe it's cultural. We barely voted out an insurrectionist. 48% of the country voted to keep that in play. This country is full of people who are actively encouraging someone to overthrow our government. 48%.
Couldn't agree with you more. Democracy literally means "people rule." As the rulers, you occasionally have to rule. It blows my mind that so many people act really angry about states that gerrymander or take away abortion rights, but can't even name a single state legislature. The little political motivation people have gets funneled into a few super-popular national issues regardless of their political feasibility, so Congresspeople are incentivized to virtue signal rather than get legislation though.
I have no intent on living through a new North Korea, a new Russia, a new Greater German Reich, or a Gilead.
We're only a few years away from the collapse. It is a smart move to escape while you can. If I need heart pills or insulin in the future and they can't be made safe, then it won't be safe if you have any medical issues. If the water won't be safe because we couldn't regulate new chemicals invented, then it won't be safe to live here. If it isn't safe to have a pregnancy, because they've decided to sentence to death those with an ectopic pregnancy, why should you stay?
> I'd like to caution other people who are feeling despondent and thinking of leaving that this is exactly what they want.
Could you clarify who "they" is in:
> this is exactly what they want.
?
And are you being a little hyperbolic (nothing wrong with that, we all do it especially when impassioned) or do you really think the supreme court (or whoever "they" is) are trying to cause an exodus of people they disagree with?
I'm not challenging/disagreeing with you, just very interested in understanding your thinking.
I intentionally left they up to interpretation here because I think the same logic applies to anyone who is potentially being forced from their home. This could apply to California w.r.t firearms, or perhaps San Francisco and their lethargic response to a public health crises, or perhaps Ohio where I live where Christian Communists are attempting to subvert the United States and the Constitution.
I've actually always felt this way about immigration and refugees as well. I certainly understand taking people in (from wherever, to wherever), but the big problem with that is once all the good people leave an area you have nothing but the bad people. It's sort of fragile on a global scale. What's the end goal? All "good" people go to a select few countries and then the rest of the world is run by bad people?
> And are you being a little hyperbolic (nothing wrong with that, we all do it especially when impassioned) or do you really think the supreme court (or whoever "they" is) are trying to cause an exodus of people they disagree with?
I don't think there's an active campaign just yet, but I do think that state legislatures are happy when this filtering process happens because it solidifies power. So far they have not undertaken active, visible campaigns, but I believe that it's coming and will come more aggressively from Christian Communists that have taken power in state legislatures. It's not something that Democratic Party leaders will say out loud but of course they're happy when so-called Republicans leave their jurisdiction as well.
> I'm not challenging/disagreeing with you
Please do! We can't get better if we don't explore and have discussions.
While I think that I understand your feelings, here is something to consider: Yuval Noah Harari (historian who has written some great books for understanding the world) recently said that if countries like the USA can solve the partisanship problems we have then there is no limit to where our society and civilization can go.
This seems well worth working hard for.
My personal approach is to be very hard on family members and friends who if democrats talk about republicans as evil incarnate and if they are republicans then talk about democrats as woke idiots who are ruining the country.
I try to point out how stupid both sides are and they are fighting the wrong battles against the wrong enemy.
Another reason to stay in the USA: currently the world is splitting into two economies led by:
1) BRICS countries (Brazil, Russia, India, China, and South Africa) - they will probably have about 60% of the world's population aligned with them.
2) USA/Europe/Canada/Australia/etc. - they will probably have about 40% of the world's population aligned with them.
Except for the USA and Russia who have the resources (food, energy, defensibility), I think that most all of the other countries can not exist without external trade. If the shit really hits the fan for the world, being in the USA might be a very good thing, even if we don't solve the political bigotry of democrats and republicans hating each other.
-- America began the process of un-uniting quite some time ago - it's unsurprising that the supreme court is reflecting that - curious what Americans here think about this? - much of the country is trending towards "live in the state that you're comfortable in" - seems somewhat reasonable? --
> 1. Moving is hard. Even harder for people that have little means. Living in the state you're comfortable isn't going to work for a lot of people.
Also, don't forget that a lot of blue states (if that's where someone wants to live) have been really bad at providing enough housing, so are pretty difficult for someone to move to if they don't have a lot of money.
-- I'd think that if you wanted to progress your country and change it toward your perspective - it would take folks moving to the areas they're uncomfortable to do the work in those communities - from an outside perspective it seems the conservatives are going to swallow the liberals in the states simply because they're more comfortable literally going to other areas of the country to change/bolster views? (I don't live in the USA)- however - I suppose that's a lot to ask - that said- it's fairly common in some countries --
That's a pipe dream. The division is urban-vs-rural, not state-vs-state. What is now a red state will inexorably become blue as people flock to it. Rinse and repeat.
America has been through divisive times in the past. We'll survive. I think what's notable now is that it's been so damn peaceful for most of our lives that this looks like unprecedented tribalism.
It looks much less so if you turn off the news. I have a good life here, and I'm unconvinced it would be a net improvement to move to Europe. I enjoy visiting there, but it's not like they don't have their own problems.
This is a silly decision. I don't respect the reasoning at all.
If Republicans want to abolish the EPA, all they have to do is pass a law. They could do it with a simple majority in each House if they abolish the filibuster (which itself requires only a simple majority).
There is no meaningful loss of democratic control here. Congress can do whatever it wants, with or without the EPA.
This is just the highest court in the land acting as toadies for the fossil fuel industry, legislating from the bench on a flimsy right wing legal theory.
For a law to be passed in the US, it must be approved by the House, the Senate, and the President. For a law to be repealed in the US, the repeal must also be approved by the House, the Senate, and the President. So there will often be situations where it matters what the current law is - whenever these three components of the system do not agree, so that the current law will not be changed. In such a situation, it is not supposed to be the case that the President (in control of the executive branch) can unilaterally decide that the current law is whatever they want it to be.
Great, so now we're reliant on congress to get something done. The same congress that's sat on its hands for the past 30 years and has been shown to be completely incapable of addressing the issue.
This is a massive blow to the US being able to reach emissions targets. Every day we're one step closer to the 'business as usual' path that leaves the world 3-4c hotter. That's a catastrophic scenario.
>>This is a massive blow to the US being able to reach emissions targets.
Whose targets though? 'Shouldn't we the people' have a say? i.e. shouldn't congress actually hold the hearings, digest the info and go on the record voting for or against important items?
We don't let the IRS set tax rates, we should not let unelected bureaucrats decide what the environmental goals are - elect people you think represent your priorities, have them go on the record supporting or opposing important decisions, and then pass a law the establishes frameworks to the agencies in charge under which they operate.
Again, congress has had 30 YEARS to do something. They've done nothing. I'm long past the point of assuming ignorance and incompetence, much of congress is clearly acting in bad faith on this issue because they are beholden to the fossil fuel companies.
Want 'We the People' to have a say in whether or not the EPA should regulate CO2? Put it to a national referendum. Congress has shown repeatedly that it's more than happy to watch the world burn if it means their superpacs are stuffed with lobbyist funds.
> shouldn't congress actually hold the hearings, digest the info and go on the record voting for or against important items?
Of course, but this will never happen. So if the only positive outcome of an action is a long tail event, then maybe the action shouldn’t be taken. We have to look at the expected value of this, which is that people less versed than the experts suddenly making decisions they had previously relegated to the experts. Chaos.
The effect of the
Court’s order, followed by the Trump administration’s re-
peal of the rule, was that the Clean Power Plan never went
into effect. The ensuing years, though, proved the Plan’s
moderation. Market forces alone caused the power industry
to meet the Plan’s nationwide emissions target—through
exactly the kinds of generation shifting the Plan contem-
plated. See 84 Fed. Reg. 32561–32562 (2019); Brief for
United States 47. So by the time yet another President took
office, the Plan had become, as a practical matter, obsolete.
For that reason, the Biden administration announced that,
instead of putting the Plan into effect, it would commence a
new rulemaking. Yet this Court determined to pronounce
on the legality of the old rule anyway. The Court may be
right that doing so does not violate Article III mootness
rules (which are notoriously strict). See ante, at 14–16. But
the Court’s docket is discretionary, and because no one is
now subject to the Clean Power Plan’s terms, there was no
reason to reach out to decide this case. The Court today
issues what is really an advisory opinion on the proper
scope of the new rule EPA is considering. That new rule
will be subject anyway to immediate, pre-enforcement judi-
cial review. But this Court could not wait—even to see
what the new rule says—to constrain EPA’s efforts to ad-
dress climate change.
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 shift-
ing. 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.
§7411(a)(1). 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’ car-
bon 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 gen-
eration shifting is just too new and too big a deal for Con-
gress to have authorized it in Section 111’s general terms.
But that is wrong. A key reason Congress makes broad del-
egations like Section 111 is so an agency can respond, ap-
propriately 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.
tl;dr: the majority chose to rule on a plan that never went into effect and will never go into effect, in practice taking on an advisory role rather than waiting for an actual concrete plan to rule on. Beyond that, Congress intentionally chose the broad language of "best system of emissions reductions" but the majority asserts that congress should have instead referred to generation shifting by name despite the technology not existing at the time of drafting
As mentioned in the dissent, congress explicitly gave them the power to regulate green house gasses in this specific scenario. But the majority conservative opinion made up their own rationale as to why that somehow doesn't apply in order to curb the EPAs power.
The modern day supreme court is a joke, unable to be even remotely consistent in how it applies its rationale and its clear they're merely another puppet for conservative politics.
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.
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 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.
> 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.
"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?
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.
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."
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.
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.
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.
> 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.
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 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.
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.
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.
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
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.
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?
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?
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.
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.
> 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 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;
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.
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.
> '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?
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.
> 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.
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.
> (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.
> 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.
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.
> 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.
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."
> 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.
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.
> 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".
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.
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.
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.
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.
"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.
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;
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.
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.
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.
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.
> “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.
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 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
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.
"""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.
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.
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.")
> 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.
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?
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.
> 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.
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.
> 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.
> 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.
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).
> 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.
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.
> 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.
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.
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.
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.
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.
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.
> 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?
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.
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).
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.
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'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.
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.
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.
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.
> 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.
Basically every comment about the legitimacy of the ruling is immediately followed by a comment rebuking it. If you think it's the dominant opinion you may need to reflect on that.
No one brought up LGBT rights and labor politics as far as I scrolled down.
Threatening people for sharing their opinion isn't going to help your position.
They* said they* were a conservative and those are all mainstream conservative opinions, don't know what more to tell you.
And I agree there's comments on both sides but you can't claim conservatives* are be forced to keep their* heads down or whatever, much as I might wish to not see them.
>And honestly, if thinking for yourself leads you to be anti-climate action, anti-lgbt rights, anti-labor etc. you deserve whatever you get
There are basically 6 major factions in the US right now, along with the associated special interests.
The Establishment Democrats, and the Progressive Democrats
vs
The Establishment Republicans, and the Populist Republicans
and the Independents, and 3rd party which often determine elections.
On above, Establishment Republicans and Establishment Democrats have far more in common, with each other, than they do with their respective Populist and Progressive wings.
Likewise, in many areas the Populist Republicans and Progressive Democrats have a great deal in common too.
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.
> 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).
> 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.
>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 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.
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
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.
> 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.
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.
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 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.
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.
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.
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."
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.
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.
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.
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?
It would be nice if you at least kept up the appearance of polite discussion.
Faux "quotations" make you look much worse than your nemesis. Projecting invented intentions is not okay, either. Not to speak of clearly breaking the site's guidelines.
What is this “right” to an abortion and who decided it exists?
It’s worth noting that the EU Court of Human Rights has repeatedly refused to recognize a “right” to abortion under the EU Convention on Human Rights: https://en.wikipedia.org/wiki/A,_B_and_C_v_Ireland
There’s no right to an abortion in most of Europe. Legislatures allow abortion to varying degrees, but it’s seen as a matter of legislation, not “rights.”
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 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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
In this case, as I understand it, the EPA was declaring they had authority to enforce some new rules by interpreting where congress wrote "may" as "must". Whether you agree with the EPA's motives or not, it should concern everyone that un-elected bureaucrats have been increasingly inventing or hallucinating the language of their mandates to turn them into whatever they wanted, whenever it suits them, and this was a much needed rebuke of that behavior.
>In this case, as I understand it, the EPA was declaring they had authority to enforce some new rules by interpreting where congress wrote "may" as "must".
Congress didn't pass a law and disappear. If Congress felt that the EPA was misinterpreting the language of the Clean Air Act it could have passed a law limiting the agency's powers. The fact that it did not do so is the strongest rebuttal to the claim that the EPA was operating outside its mandate.
This decision is an announcement by the Court that Congress can no longer be trusted to govern the agencies it oversees.
Because the Court has taken an issue that Congress did not [yet] show any urgent inclination to act on, i.e., alleged overreach by the EPA over many Congressional sessions with many different partisan compositions. And they have taken away Congress's discretion to decide its own agenda and priorities by turning this into an emergency that has to be dealt with right now by this Congress. There is real harm to this: it halts an existing regulatory process, and it may take years for Congress to repair the damage.
The fact that nobody was harmed by this regulation -- and there was no urgency -- and yet the Court still took the case is indeed a huge problem that underlines my concerns with this case. Why did the Court step into this case and override both Congress and the executive branch when the regulation itself wasn't harming the plaintiffs? The emergency here is that the EPA now has no idea what its authority will be on any regulatory actions regarding CO2. (And when Congress finally legislates, it won't know what its authority is either.)
>Congress didn't pass a law and disappear. If Congress felt that the EPA was misinterpreting the language of the Clean Air Act it could have passed a law limiting the agency's powers.
It is not congresses job to enforce the law by writing new laws.
Agreed, the executive branch (the bureaucracies) does not make laws, congress does. The fact that the bureaucracies are governing above and beyond what they are legally allowed to do is actually horrifying and very undemocratic.
Fix the SCOTUS. I like the proposal to have term limits (long ones, maybe 20 years) and increase the number of justices so that every four years two of them are replaced by the sitting president.
A huge piece of this is that they are creating judicial tests that are hugely subjective.
They are happy to issue this ruling because when some policy they like comes around they have given themselves the legal cover to interpret it as a constrained delegation of power.
The same can be said for the historical tests they have introduced. They ask that judges look for the "history and tradition" of various activities knowing that they don't have to defer to an actual historian or linguist. They can find the history that agrees with them or form the question such that the history agrees with them. e.g. in the case of Dobbs, the question they asked was "is access to abortion part of our history or tradition?" when they could have just as reasonably asked "is privacy and bodily autonomy part of our history or tradition?"
It is calvinball as jurisprudence and the cases this term are far from the last time we will see these 5 blatantly contradict themselves and/or good faith interpretation to reach a policy outcome.
-- from an outside perspective it feels like declined American manufacturing / skilled labour simply continuing it's reflection into the American society? - this started long before trump? -- bail out the banks > 1% hate > occupy wall st etc > "coastal elite" > state pride > trump etc > appetite in the country for the court to address federal vs state precedent? Could be wrong, just how it looks from the outside --
There's more to it. The American right has been working a multi-decade long plan to pack the supreme court with... Well, people like this. And now the chickens are coming home to roost.
They'd have done this regardless of the state of industrialization or 1% hate. It's an alliance between religious fundamentalism, and the business community, and what they want has stayed constant despite the short term ebbs and flows of politics.
Also, please don't buy into the states rights nonsense. This group only believes in states rights when they don't control the federal government.
It's really best to just not listen to what it says, and instead look at what it does.
Trump is a tool. He didn't do this. He doesn't have the brain power to do this. This was the CNP, the Federalist Society, the Koch bruhs, etc. They've worked on this for decades. DECADES.
What the government should do about climate change should be decided by legislation agreed upon by the President and Congress, not by an administrative agency.
That could employ subject matter experts and scientists to draft reasonable and prudent regulations, hopefully away from the influence of lobbyists? What a novel concept.
Or they could legislate. What's the purpose of electing lawmakers if they just hire random bureaucrats. If they want advice they have the money to get that advice
It is common and reasonable for legislation to delegate responsibility. Administrative rulemaking has been around for a long time and will continue to exist.
Bastards. This will neuter the US administration's ability to form international treaties and create pressure abroad, in addition to domestically. An environment increasingly unable to support life itself, but let's all take comfort knowing that this may lead to 4% of the planet having more deliberately worded laws.
As Chomsky said, the US Republican party is the most dangerous organisation in history. Congress has been captured and they won't undo this.
This might become one the most significant stories we'll read in our lifetimes.
The very first words of the opinion, on p. 2, make clear that the legal issue before the Court is very different: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
The Clean Air Act does not purport to give the EPA blanket regulatory authority over anything involving emissions into the air. It has detailed provisions focused on reducing the amount of toxic pollutants, in particular through the use of control (scrubbing) technologies. This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.). The Court decided that the statute did not confer on the EPA the power to do that. The relevant discussion begins on page 16.
This decision gives legs to something that has been called the "major questions doctrine." The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem. As applied here, that means that the EPA can't rely on authority delegated by Congress to, for example, tell coal plants what kind of scrubbers they have to use, to tackle climate change. pp. 17-19.