Ah, forgotten records, including the musings of poet Allen Ginsburg, provide a secret decoder ring to interpreting the Clean Air Act. This is not, of course, how one interprets statutes.
For what it's worth, the linked press release's description of the Supreme Court's decision is wrong; the court did not, in fact, hold that "Congress had not empowered the EPA to regulate greenhouse gases," but that it could not regulate in the manner that it did. And, so far as the statute at issue is concerned, the evidence is overwhelming that it was never intended to empower EPA to restructure the nation's electricity system. I wrote a fair bit about this at the time, and was apparently persuasive.[1]
How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Recent court opinions seem to take the stance that congress hasn’t legislated thoroughly and accurately, and now have crippled the chevron doctrine saying it should be in their hands.
There’s parallels here with software development, I think. It’s easy to come up with a basic system that works as intended but is not robust to failure. It’s extremely hard to near impossible to be both succinct, correct, and robust to failure. You also wouldn’t expect the PMs to be responsible for the implementation.
Of course, many lawmakers are happy to outsource the coding to special interests.
One option would be to just have fewer federal laws altogether, and devolve most authority back to the several states. The federal government was only able to assume many of it's current powers due to a series of Supreme Court decisions that allowed Congress to use the Commerce Clause to legislate on issues only loosely connected to interstate commerce. Those precedents can be overturned.
Decentralized, peer-to-peer systems tend to be pretty robust. Even if a few states "fail" the others will be fine.
The previous poster is right that the commerce clause (amongst others) have been twisted incomprehsnibly and while there’s a benefit, it’s begging to be overturned (and in a ‘realist’ sense, they should be). The answer then is for an amendment to provide the (expected) additional powers to the federal government.
And then we end up in the same situation where there's some new thing that should probably be regulated at the federal level but can't be since it's not explicitly listed in the constitution.
Imagine one day we invent portable teleporters. They would immediately be used for crime once they are available on the market although there would certainly be plenty of legal uses. That sounds like something the federal government should regulate, yes? You simply can't leave that up to the states because everyone is going to have a different standard for who can own one such that all you would need to do is travel to the least regulated state, buy a teleporter, and teleport back home. Having 50 different laws saying who can and can't own one would simply not be feasible based on how easy people can travel across the country. The federal government would need to establish regulations but only if the constitution says they can. Congress in 2024 would not have any notion that those could exist and would likely not explicitly give the federal government the power to regular them.
That’s by design. It’s a feature of US constitutional history, not a bug. You might not like the feature, but it was hotly debated in the 1790s and state rights were agreed upon. Abuse the constitution and we’ll imperil ourselves in other ways
>And then we end up in the same situation where there's some new thing that should probably be regulated at the federal level but can't be since it's not explicitly listed in the constitution.
Which is sort of the point of the structure of the US government. A government of a United collection of States, whose power is derived not from holy writ or mandate but from the people of those states granting powers to that government. If they don't grant the power, the government can't do it.
>You simply can't leave that up to the states because everyone is going to have a different standard for who can own one such that all you would need to do is travel to the least regulated state, buy a teleporter, and teleport back home. Having 50 different laws saying who can and can't own one would simply not be feasible based on how easy people can travel across the country.
And yet we do this all the time. Cars and their ownership are regulated on a per-state level, marijuana (ironically because the federal government has overstepped too far and the states and their people fought back) is legal or not in various forms on a per state level (and this as I note, despite being federally illegal). Guns, knives and indeed pepper spray are similarly regulated on a state by state basis. As are radar detectors. So much of people's day to day lives are regulated at the state levels and it works plenty fine most of the time. This need for everything to be uniform across the country is tempting, but like all things in life is full of trade offs. One shouldn't have to cast their memory too far back in time to imagine what it might be like for a federal administration run amok to have absolute authority over too many things.
What kind of industry wants to navigate 50 distinct full sets of laws, regulations, oversight/enforcement practices, and penalties that change at state borders but have to somehow be made to work together, at scale, in order to function. Businesses really don't want a ton of red tape involved just to send an email from your office in one state to your office in the next state over.
Federal laws are great because they can cover the majority of that stuff that applies to every state and meaning that you only have to worry about a few small changes (if any) from state to state. Federal law is more stable and can even override state laws. That's so much easier.
If every business only had the reach of a local corner grocery store, maybe state laws would be ideal, but for a national or international business the less you have to worry about local laws the better.
> What kind of industry wants to navigate 50 distinct full sets of laws, regulations, oversight/enforcement practices, and penalties that change at state borders
This is actually quite typical. Most areas of the law are not within exclusive federal preemption, so companies do have to navigate the laws of 51 jurisdictions (not counting cities and counties which may also have applicable laws) if they want to operate nationwide.
The other side of this coin is maybe if there was less uniformity and less federal law pre-empting state authority, massive multi-state corporations wouldn't have as much power and control. We can take the EPA vs CARB as an instructive example. EPA regulations pre-empt federal law, and California gets a specific, expiring exemption to have stronger regulations. But maybe emissions regulation could be even better if more states with like minded people were able to pass stronger regulations like California. Certainly one wonders why only California has such an exemption given the apparent popularity of stronger regulations.
> How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Specificity plus brevity plus non-delegation add up to a limit on the load of law that we are subjected to. It's the bias toward freedom of individual action of classical liberalism. You are entirely correct that this kind of limitation would be crippling to a software project. Gorsuch just doesn't think that the state should have that degree of detailed control.
The Bill of Rights is a specific list of things that government cannot do. It's been under constant assault ever since.
Something to keep in mind when thinking about Chevron.
Consider the 2nd Amendment. I'm not a gun nut, and in the abstract don't care much if gun ownership was banned. However, that would require simply ignoring the 2nd Amendment. If the 2nd can be ignored, ignoring the rest cannot be far behind.
When you let a tiger into your house to get rid of the dog, the tiger won't stop there.
A constitution is not a sacred text but a very practical one. The constitution of my country went trough five major rewrites and was amended approximately a dozen of times since the last rewrite and somehow we are still a liberal free country.
The idea that touching it in any way or form is a slippery slop leading to less rights is a fallacy.
It isn’t that “touching it” is a slippery slope, but that ignoring part of it is a slippery slope.
If an amendment is passed to change the 2nd amendment, that’s one thing.
But not doing that, and just banning private gun ownership (or whatever law one might want to pass that goes against the second amendment) anyway, would be a rather different thing.
The Constitution isn't meant to be immutable, the Constitution itself specifies a process for changing the Constitution. That process has been used numerous times before, so we know it can work. The people who want to ignore that process are people who want to change something in the Constitution but lack the requisite political support to do it properly. This is why they get told off.
The Second Ammendment could be nullified with a new Amendment that undoes the Second, but this isn't seriously entertained by gun control activists in America because it would be extremely unpopular so there's no way they could pull it off. Instead, they intend to simply ignore the law.
Sure but the explanation conveniently sidesteps the issue with the senate lack of actual representativity. Even a popular law could easily be blocked by a small minority in the rural states.
Anyway I’m not American. The quality or lack thereof of the US political system doesn’t really affect me. Would appreciate the US getting its act together when it comes to GHG emission however because we share the same planet.
The senate has plenty of representativity. Is China or India any less represented at the UN because they have the same number of votes as Cuba and Micronesia? Surely there are a few "popular" items China or Russia might like to see passed that are blocked by "a small minority in the rural states" of Europe?
Beyond that, the states themselves can petition for a constitutional convention. 2/3s of the state legislatures would be all it takes to kick that process off, no senate "representativity" required (unless I suppose the senate wanted to argue that "congress shall call a convention" does not obligate congress to do so. But I suspect that's a constitutional crisis even the most obstructionist senators would be reluctant to take on in the face of 2/3s of the states actually petitioning congress.
> Is China or India any less represented at the UN because they have the same number of votes as Cuba and Micronesia
Yes, very much so. That’s part of why the UN is not taken very seriously and why the security council exists.
> The senate has plenty of representativity.
Debatable. It was certainly fit for purpose when it was set in place. Is it appropriate nowadays? Probably not, especially when you consider how it impacts the electoral college.
I tend to find the USA political system a bit dubious (I think the same of the one of my own country to be clear and I generally have a poor opinion of presidential systems anyway). Still, the country has been mostly stable until now so I guess it’s fit for purpose.
> Sure but the explanation conveniently sidesteps the issue with the senate lack of actual representativity
That complaint isn't addressed by empowering political appointees from the executive to write laws the courts aren't allowed to challenge. Least of all, laws which violate he Bill of Rights!
The gun nuts have convinced so many people there is only one way to read the 2nd amendment.
"Despite the Supreme Court’s rulings in Heller and McDonald, many constitutional historians disagreed with the court that the Second Amendment protected an individual right to “keep and bear Arms” for the purpose of self-defense in the home. Indeed, for more than two centuries there had been a consensus among judges as well as scholars that the Second Amendment guaranteed only the right of individuals to defend their liberties by participating in a state militia. However, by the late 20th century the “self-defense” interpretation of the amendment had been adopted by a significant minority of judges. The self-defense view also seemed to be taken for granted by large segments of the American public, especially those who consistently opposed gun control."
They've done that because other readings require some pretty significant twists and turns to get there. Some are more reasonable than others, but take "guns" out of the equation and the individual right becomes obvious. Consider the following text:
"A well educated electorate, being necessary to the proper functioning of a democratic state, the right of the people to keep and read books, shall not be infringed."
A reading of the 2nd amendment that doesn't see it as an individual right means we must read the forgoing as protecting the right to keep and read books only for the class of people that are eligible to vote, and only in the service of educating them. And realistically, if you put that text on a multiple choice SAT with the question "Who has the right to keep and read books?" I don't think you're going to get many people answering "only people eligible to vote".
Beyond that, to read the 2nd amendment as not protecting an individual right would also require an interpretation of a right of "the people" to mean something other than every other reading of "the people" throughout the rest of the document:
* The right of "the people" to peaceably assemble as outlined in the first amendment is not limited to members of religious orders or members of "the press".
* The right of "the people" to be "secure in their persons, houses, papers, and effects" is certainly not limited to some government defined collection of people who only have that right while they are collectively acting.
* The "person" whose rights are protected by the fifth amendment has been time and again ruled to be an individual.
* The tenth amendment clearly distinguishes between the federal government, the states and "the people". If "the people" are supposed to be the militia, how then are they distinct from the federal government or the state?
* The fourteenth amendment refers to "persons" and their privileges, immunities, life, liberties and property. But how could the state infringe on the rights of those people if the people are the militia and the militia is an arm of the state?
It seems strange that in a collection of amendments specifically in place to outline some hard limits on government power and particularly with respect to individuals under that government, that one and only one of those limits was to restrict the government from limiting another arm of the government, but in terms that referred to individuals in every other case it was used.
Most laws are written in response to harm. The goal is to prevent the harm, but how to achieve the goal is not something you can encode into law in some kind of recursive function. Context matters.
> extremely hard to near impossible to be both succinct, correct, and robust to failure.
It depends on the size of the overall system. The smaller the system the easier this is to achieve.
> many lawmakers are happy to outsource the coding to special interests.
In and of itself, this is actually a good thing, as you point out:
> You also wouldn’t expect the PMs to be responsible for the implementation.
So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto any legislation that hasn't passed with a super majority.
> So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto
I think what you would want are non-bribed congressmen writing laws for the good of the people and not to increase the wealth and power of a select few at the people's expense, while those laws are being informed/reviewed by experts who don't have a conflict of interest (which should include not accepting money/favors from people who do) and then having a President (who should also not be accepting bribes) able to veto laws.
Having corporations and lobbyists hired by industry write laws that favor them to the detriment of everyone else, then getting those same laws passed thanks to a series of dark money bribes and promises, then having a similarly bribed president rubber stamp those laws is what brought us to where we are right now.
If our current system is working as intended, then the system has failed by design and needs adjusting. If it isn't working as intended and private corporations were never supposed to be able to have this level of influence over government or have the ability to cause harm to the degree that they have, then the system still needs adjusting to correct the situation.
> while those laws are being informed/reviewed by experts who don't have a conflict of interest
How do you create this rather mythical class of individual? Wouldn't the time taken to gain the expertise also subject them to bias from the companies they worked for? We can put time limits on the "revolving door" but you're essentially building a policy that actually relies on it.
> lobbyists hired by industry
When an industry is not monopolized and has healthy competition why would you expect the industry, possibly represented by a trade group, to be incapable of writing good long term policy? How do you account for the many times where this has actually happened and continues to happen?
There is a monopolization problem in many industries. This gives a single corporate entity massive power. Perhaps more power than the federal government itself. Isn't this what "too big to fail" or "too big to disband" represents? Hasn't it been shown that actual legislation is meaningless to these entities already?
> is what brought us to where we are right now.
Where did you think we were before?
> then the system still needs adjusting to correct the situation.
If laws aren't being enforced already how is modifying the system for writing them possibly going to solve your apparent complaints?
> How do you create this rather mythical class of individual? Wouldn't the time taken to gain the expertise also subject them to bias from the companies they worked for?
If you've known many employees you'll know that having worked for a company doesn't always instill undying devotion to that company or require placing the company's interests above all over concerns. I'm also not convinced that all experts need to have actively worked directly for the companies being regulated either.
> why would you expect the industry, possibly represented by a trade group, to be incapable of writing good long term policy?
I don't, but I do expect them to write policy that benefits them regardless of who else or how many others are hurt in the process. Corporations are amoral monsters that care only about profit. They'll happily create legislation that allows them to pollute the Earth, poison entire communities, hinder existing competitors while limiting the ability of would-be competitors to become a threat, and limit our ability to hold them meaningfully accountable for the harms they cause. In some instantiates legislation can further their selfish goals while, even if only by coincidence, also align with the general public's interest. Their legislation might also not pass as written, and through negotiation to get them what they want a representative might concede to modifications that give the people something they need as well. Industry doesn't write legalization for altruistic reasons and they certainly don't write it because they want to get or stay elected.
> Hasn't it been shown that actual legislation is meaningless to these entities already?
It shows that our current legislation hasn't been written with the intent to constrain them. We know from experience that strong regulation with teeth can do a lot of good, but industry spends massive amounts of money bribing lawmakers to throw out effective laws and regulation so that they can do whatever they want without consequence.
> Where did you think we were before?
I think that before corporations weren't spending billions every year in lobbying. I think that before Citizens United and Super PACs corporations weren't able to freely funnel unlimited amounts of money into the pockets of congressmen and presidents. Before we were in a nation that didn't grant nearly as many rights and privileges to corporations, didn't consider them people, and didn't consider money to be speech. Labor unions were much much stronger and public-interest groups had a greater influence on politicians because their voices weren't drowned out by the floods of money corporations were able to spend.
> If laws aren't being enforced already how is modifying the system for writing them possibly going to solve your apparent complaints?
Laws are being enforced, but laws constraining industry have been made limited, weak, and ineffectual following more than a century of coordinated efforts by corporations to corrupt our political system, overturn laws and regulations that limit their profits and power, and weaken the ability for anyone to hold them accountable. By modifying our system for writing laws in ways that seek to minimize corruption and limit the ability for corporations to pass self-serving policy, reforms to undo much of the damage they've caused our political system become possible. I do not believe that it is impossible to limit the outsized and still growing influence of corporations on our laws and political system. I think that we can still fight against corruption in politics, but we can't do that while the very cause of that corruption is writing our nation's policy and filling the pockets of politicians with limitless cash.
The Major Questions Doctrine is just a way for the Court to reject a reading of a statute even it agrees is supported by the plain text. It a statute gives an agency broad authority, the agency should have broad authority, and if Congress doesn't like it, it can claw it back. All the Supreme Court did in the EPA cases was insert its own policy preferences for that of the elected branches by inventing a notion that a statute needs to be super-duper extra clear if agencies want to do something businesses don't like. Bravo for helping convince the Court to adopt this intellectually bankrupt framework.
Comments like this, where someone who is directly involved and deeply knowledgable, randomly jumps in are why I love HN.
People are so fixated on a result (in this case lowering CO2 emissions) that they can't see past that to consider the actual fundamental legal principles of court decisions, especially supreme court ones. I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends. Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions. It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision, they commonly seem to not even report on the actual legal question being decided! I have never seen a single mainstream news article which correctly casts blame on congress for failing to legislate effectively or unambiguously.
> Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
We don't need to hypothesize, Chevron was the law of the land for most of our lifetimes until the self-appointed Supreme Court super-legislature intervened. Arguably Chevron itself was the courts recognizing established legislative function with federal agencies that had existed for decades prior. We can see exactly how federal agencies would or would not abuse their authority, and congress really didn't have a problem with the situation as evidenced by the the absence of legislation to change the arrangement.
The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.
It must be a relief that instead of unelected, unaccountable bureaucrats interpreting highly technical implementations of vague statutes, we'll now have unelected, unaccountable judges doing it.
It is, for the same reasons that it's a relief that the "unelected, unaccountable judges" interpret highly technical implementations of vague criminal statutes instead of the police. Because the police by their nature are biases towards the interpretations that make their jobs easier and give them the powers they want regardless of if they actually have it.
> it's a relief that the "unelected, unaccountable judges" interpret highly technical implementations
In the same judgment where the Supreme Court gave themselves total power to interpret technical implementations of the law, they confused nitrogen oxides with laughing gas.
I wish I shared your faith in the ability of narrowly specialized lawyers to work outside their core competency.
I have very little faith in the ability of narrowly specialized lawyers to work outside their core competency. The courts get things wrong all the time. I also have little faith in the ability of narrowly specialized administrators outside their own core competency (that being administration), or for that matter, administrators in a revolving door of regulatory capture.
My faith is in the same thing all of open source places their faith in, enough eyeballs. Congress makes a law, administrators enforce said law, citizens challenge said enforcement, courts rule on the state of the law, congress makes a law. And as we iterate over this process, the bugs are ironed out, the stakeholders have input and we work ever more towards a "more perfect" ideal.
> Congress makes a law, administrators enforce said law, citizens challenge said enforcement, courts rule on the state of the law, congress makes a law.
This is a wholesome, well intentioned idea that I support.
The problem is that for most of our lifetimes congress has been operating under a model, specified by the Supreme Court, that regulators would make a reasonable interpretation of the laws that congress wrote. Think of it as the city council saying "The parks service shall keep the parks clean and safe." Not splitting hairs about every possible threat to safety, or defining exactly what clean means. Like it or not, legislators can't and don't want to exhaustively consider every possibility, and they can't react in a timely fashion to novel problems.
The courts suddenly turning this arrangement on its head and seizing the reins is not something that voters or legislators ever envisioned. It's exactly the kind of disruptive, chaotic move that an apolitical court would run far away from, and exactly the kind of move that destroys faith in the courts.
The one blessing that could come from this move is that it will force the other two branch to take a sober look at the brazen partisanship of the supreme court, and hopefully exercise congress's power to deeply reform. Regardless of your political leaning, we should all want to rip partisanship out of the courts by the roots.
I don't think that the removal of the Chevron deference means that regulators can't make "reasonable interpretations" of the laws. I don't think one could reasonably say that regulators were prevented from doing so from the founding of the country until 1984. The Chevron deference wasn't giving regulators the ability to make reasonable interpretations, it was a policy of biasing the courts to that interpretation. In my opinion that wasn't a good thing. The courts are inherently biased towards the government in the first place, what with them being part of the government, there's no reason to have an official policy of bias as well.
The parks service can continue to be mandated to "keep the parks clean and safe", but when their regulation that "no minor children shall be allowed in the parks except under the supervision of a related adult" is challenged by the local pre-schools because it prevents them from having field trips to the parks, the courts are no longer required to find that because requiring children to be supervised by relatives is a reasonable interpretation of "keeping the parks safe" that they must then conclude the regulation is within the scope of authority.
>The one blessing that could come from this move is that it will force the other two branch to take a sober look at the brazen partisanship of the supreme court, and hopefully exercise congress's power to deeply reform. Regardless of your political leaning, we should all want to rip partisanship out of the courts by the roots.
I find myself hoping that the other branches rather take a sober look at their own behavior and seek to remove the need for the courts to be so involved in the day to day operations of the government. We are in this position largely because for a few decades now Congress has abdicated their responsibility to legislate and regulate and also to represent the people in favor of deadlocking themselves and avoiding responsibility for making hard decisions. Net Neutrality is a perfect example of this. It's exactly the sort of major change in regulation of communications that congress should absolutely be responsible for outlining, and instead they have allowed the executive branch and the courts to fight it out and so we've seen it flip flop from being law to not law multiple times.
> The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.
A good number of those in congress intend to exploit this opportunity to push ideological and political changes while crippling the efforts of the other members to do anything to stop them. Unless/until there are enough people in congress who see this situation for the danger that it is, there's no chance of new legislation that would do that.
how can we interpret that the legislature doesn't have a problem with chevron because they didn't draft countering legislation, but take the opposite approach when they don't draft countering legislation in the opposite case?
"It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision"
In a lot of cases, they do more than that and outright misrepresent it.
> they can't see past that to consider the actual fundamental legal principles of court decisions
Precisely.
The court isn't ruling about CO2 emissions, it's ruling how the government operates within the confines of our constitutional system.
If Congress fails to pass a law that correctly empowers an administrative body to regulate X, then that regulatory body should be prevented from regulating X.
The issue then gets kicked back to Congress, where their job is to refine the law to address its deficiencies.
The idea that Congress can pass overly broad laws that administrative bodies can then independently interpret that are outside the ability to challenge in a court of law seems like a terrible system.
> I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends.
Uh, the US has a deeply dysfunctional system. It covers most aspects of governance, judiciary, legislative, electoral system, the fifth estate.
It’s entirely reasonable people are only concerned with outcomes, and not process.
I agree that we are deeply dysfunctional but it's not about "outcomes vs process"
It's a very short-sighted thinking of how the process change they want to achieve their outcome today could result in someone else using that same process change for a very bad outcome in the future.
> It's a very short-sighted thinking of how the process change they want to achieve their outcome today could result in someone else using that same process change for a very bad outcome in the future.
This point needs to be amplified to a near unbearable volume. Turn it up to 11, as it might be said.
Discussions like packing SCOTUS to achieve "desirable" outcomes today completely ignore what the next person in office can/will do with such a precedent tomorrow. We can see this already with Executive Orders and how commonplace they have become - only for the next person in office to undo most or everything.
People, in general, need to be more focused on what is best for the nation long-term, not what is best for their political party today. Unfortunately for many, it seems, the difference has become blurry or unrecognizable. So many people have become victims of believing whatever propaganda their party of choice has put out there, and become hostile to any viewpoints that do not fall inside those lines. "We'll lose our democracy if X happens or if Y is elected". How many "most important elections of our lifetime" are we going to have?
The functioning of this country was based on the idea that separate branches would use their powers to balance each other. While increasing the size of the court may seem “bad” to you, it’s one of the explicit mechanisms provided by the Constitution for the Legislative and Executive branches to balance out overreach by the Judicial branch. This is the system working as intended. And in the one historical instance where we got very close to actual “court packing”, the result was not partisan warfare, but rather a detente between the branches that led to a period of political stability and prosperity unmatched in US history.
So one side packs, say 3 new justices onto the court to get their desired outcomes... until they lose an election. Then that next person packs 800 new justices so they can get their outcomes.
Do you see the problem?
That's the short sightedness the GP was commenting about, and it's kind of nutty to realize so few people comprehend such a basic concept. Yet, here we are.
We’re already in a place where one side is using the court as a tool to realize political outcomes. Whether you want to see it or not, the Immunity decision was a huge step in a dangerous direction; and there is certainly a bunch of evidence indicating that some justices on this Court are not dispassionate in their political views and will absolutely step into the democratic process to overturn voting results.
Nobody is packing the court right now. What’s on the table (and only as a discussion, not even as an actionable legislative proposal) is a reasonable package of term limits and meaningful ethics rules — rules that frankly shouldn’t even be a little bit controversial, or even necessary if the Court was doing an even mediocre job of self-policing. But if things get extreme and the Court does begin to cross political lines and override electoral decisions, then I would much rather see a Constitutional response than political violence. My hope is this possibility causes everyone to be as cautious as possible, rather than starting a political war nobody will win.
> We’re already in a place where one side is using the court as a tool to realize political outcomes
> But if things get extreme and the Court does begin to cross political lines and override electoral decisions
This is now the information bubble that was also discussed in this thread.
No, "one side" is not using the court to realize political outcomes. Both sides are - and one side had a few decade head start if we really must sling mud. Some people don't like the outcomes recently, so they attack the courts as being stacked/abused/etc. forgetting all about the past few decades where they championed nearly every outcome...
In politics, you don't always get what you want. Some people find that concept inconceivable. When they don't get what they want, it must be because of cheating/abuse/criminality/whatever.
Here's a graphic showing the composition of the Supreme Court in terms of GOP vs. Democratic appointees over the past nine decades [1]. There were certainly periods of Dem dominance but they were relatively short compared to the overwhelming GOP dominance on that chart.
I do agree that the hyperbole often seem in the media ("the most important decision", etc.) is quite ridiculous. That being said, keep in mind the assumptions you make when thinking long-term.
For example, I've had it argued to me that that homosexual individuals shouldn't be allowed civil unions, as doing so would lead to the bankruptcy of the federal government. The "long-term thinking" here was that allowing unions between homosexual individuals would, at some future point, lead to allowing unions between polygamous groups*, which would then lead to people joining in unions for tax purposes, which would then lead to a disruptive loss of income for the government.
Okay, here’s the first step: install a pluralist democracy via a representative democracy.
That’s gonna take perhaps 100 years, nobody is even talking about it. One party wants to move to some sort of crypto-fascism where a former but dwindling majority will stay in power forever. The other party fashions itself as the „only“ democratic choice against that, and enjoys that position of being the only choice… and doesn’t seem to see the irony that if you’re „the only choice“ in a democratic system, it’s not a democratic system.
In the meantime while fixing the system, please deal with the climate crisis, otherwise this whole „long term view“ will be moot.
The fact that the main way to achieve an outcome in the US is by changing the process is the outcome-vs-process dysfunctionality. It's not short-sighted thinking, it's realism. The US politico-legal environment has far more respect for process than for outcome, so processes have been co-opted to serve political purposes and if you try to simply follow the existing process or set a neutral process then you'll always lose.
I worry that the idea is the process changes being made today will be used to prevent anyone else from having a hope in hell of being able to use it at any point in the future.
The US is not deeply dysfunctional. Some amount of friction is built in to put the brakes on any sudden outcropping of nonsense from any single element of government.
While I agree with you in principle, that the friction is "as designed," I still say our system is broken -- even when there are things which a supermajority of people agree on, our legislators are unable to craft solutions which align which the majority of people agree with, without inserting things which are designed to cater to tiny minority special interests, which can effectively "poison pill" a bill so that nobody likes it (even if it's passed).
Alternatively, we pass giant tomes of legislation (esp budgets) which literally nobody can understand let alone agree on.
If a supermajority of people agree on both the purpose and implementation of anything, then their elected representatives will easily come to an agreement as well. That's literally how laws get passed.
Conversely, not passing laws is a feature, not a bug.
> Alternatively, we pass giant tomes of legislation (esp budgets) which literally nobody can understand let alone agree on.
I agree. These massive laws are rushed through precisely because leadership knows that people won't have enough time for debate, let alone in proper order.
So, so, so many people get caught up in information bubbles and fall victim to thinking everyone agrees with their viewpoint. This leads to the disillusionment with congress and the belief of it being "ineffective" because from their perspective, everyone is in agreement so why are these policies not being passed?
No, instead the system is working as designed. When there is no consensus on a policy, the policy is not passed.
> If a supermajority of people agree on both the purpose and implementation of anything, then their elected representatives will easily come to an agreement as well. That's literally how laws get passed.
In a representative democratic system.
The US does not have a representative democratic system.
> If a supermajority of people agree on both the purpose and implementation of anything, then their elected representatives will easily come to an agreement as well. That's literally how laws get passed.
That's not even close to how laws get passed. If what you say were true, then why don't we have many laws the vast majority of Americans want and have laws most Americans oppose? Americans are overwhelmingly against gerrymandering, but miraculously there's no law banning the practice. They also disapprove of overturning Roe v Wade and corporations being considered people. They support legalization of marijuana, support free college education, early voting, data privacy legislation, criminal justice reform, and a 4 day work week but again no help there.
> our legislators are unable to craft solutions which align which the majority of people agree with, without inserting things which are designed to cater to tiny minority special interests
"who fund their campaigns" fits at the end, doesn't it?
What are those things on which a supermajority of people agree, including implementation details and funding sources? Everyone wants more free stuff from the government. No one wants to pay higher taxes.
> I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions.
Are you equally persuaded by the dissenting opinions? It seems likely that you’ve been fooled by a bunch of lawyers, who are smart and highly trained at making plausible-sounding arguments for whatever their clients require.
Constitutional law is political. The Supreme Court is recruited and appointed for their political loyalties, and to a large extent their decisions conform to their political alignment. To treat their arguments seriously about which side is correctly interpreting a very old, very ambiguous document can be an interesting academic exercise, but it misses the point about what they are actually doing.
I don’t think this is the “bitter medicine” or “hard truths” you think it is.
Separately, while it’s very interesting that you played a role in writing this, and I believe that you’re correct in general about the errors in the linked articles: despite the fact that you are highly experienced, there are still idiots who win court cases, even Supreme Court cases, on crap arguments, sometimes. However, idiots never become surgeons. In my personal experience, I don’t know any idiots who also write sophisticated software. So this idea that there is some kind of objective, apolitical correct interpretation of a statue - that the practice of law at the highest levels in trials in front of the Supreme Court has this major objective element to it as surgery and math does - is kind of bupkis, you are as much practicing something imaginary, subjective, political, and poetical as the musings of Alan Ginsburg as the professors do.
So what is your opinion: do you really think Supreme Court decisions are apolitical? How would you tell the difference between a politically motivated decision that uses your arguments as a “parallel construction” to support that political decision, and a sincere belief that your way of reading the statue is objective and apolitical? Because that is what people are pissed off about.
That would once have been taken as gospel, then came Ben Carson standing by his statement that Egyptian pyramids were built for grain storage.
In the medical world there are strong opinions as to whether the procedural dexterity inherent in excelling as a surgeon also requires better than average reasoning prowess.
That's a pretty crazy example but I can top it. I've met programmers who think that Communism works and that Stalin was an admirable guy. Honest to god tankies.
I mean, there are unlicensed surgeons, who, presumably are unlicensed for multiple reasons, but one might be not being able to get certain degrees from accredited institutions -so, yeah, idiots do become surgeons of a type.
Ben Carson is (or was, likely not practicing anymore, I'd have to check) an acclaimed brain surgeon. I do not intend to diminish that in any way whatsoever.
Carson has also uttered statements in total sincerity that boggle the minds of historians, physicists, and the generally logically inclined. When questioned he's doubled down on "reasoning" that is considered to be anything but.
It highlights that we as a whole need to consider our role models for various peaks of achievement; medicine is a hard degree, it takes epic feats of rote memorisation and recall of thick textbooks, the ability to associate collections of indicators with multitudes of potential causes, the ability to grind and grind hard long hours through residency.
Surgery, for some, is a turn away from diagnostics towards human carpentry .. with no disrespect to surgeons, that's a framing they've heard before and a number embrace.
I think it's fairly obvious that the court system is more metaphysics than physics. Even when the laws are clear, we still have politically motivated jurists who will put their own denominational spin on the application of said laws.
Really? One need only look at lists of physicians whose medical licenses have been revoked or who have been sued for malpractice or abusing their patients to disabuse themselves of the notion that "idiots never become surgeons". Heck the history of medicine itself is instructive on that front. Education and success in a specific field does not preclude you from being an idiot in others or indeed even within your own field.
You give yourself far too much credit. You provided a fig leaf to cover an ideological power grab by the court, as evidenced by the naked 6-3 partisan vote split. The court was going to dismantle the EPA anyway, and you just gave them some flimsy reasoning with which to do it. They would have run with far less than this, as evidenced by the run of extremely questionable court decisions which have occurred since conservatives gained the super majority.
Honestly, who cares at this point? Obviously the intent of the clean air act was to reduce air pollution which obviously includes regulating greenhouse gas emissions. I'm tired of playing the "Well technically..." game while the planet is actively dying.
Thank you for providing your expertise in this comment section. A few followup questions, if you will...
1. Posit for a second that 1970s lawmakers did intend to delegate sweeping powers to the EPA under the CAA and allow it to regulate CO2 in ways that reshaped the every sector of the economy, when the time comes. MQD says the CAA as-written didn't accomplish that, regardless of what legislators wanted, because the EPA can't decide major questions except where legislators clearly scope and delegate that authority. True?
2. Posit that a supermajority of lawmakers, today, wanted to rewrite the CAA to actually delegate those sweeping powers of CO2 regulation to the EPA. This would be impossible, because it's not possible to enumerate all the major questions, and clearly scope and delegate the necessary authority, in order to free the EPA's hand across future decades of rulemaking impacting every major industry. True?
3. My sense is that the 2012 EPA rules mostly killed new coal plants and doomed existing facilities, practically accomplishing the same kind of "generation shifting" described in your brief. This seems like the kind of "major question" that you argue cannot be decided by EPA rulemaking. Though any number of legal and practical facts may shield those 2012 rules from post-hoc scrutiny, similar rulemakings today would probably not pass muster. True?
4. What (if any) defensible actions do you think the EPA could take, today, to reduce CO2 emissions under authorities granted by 111(d) of the Clean Air Act?
I don't think your second point is correct. Congress could most certainly empower EPA to administer a cap-and-trade scheme or even some kind of phase-out, as it did with (respectively) acid-rain precursors and CFCs. Congress could do the same for GHG emissions, without spelling out the impact on each and every affected industry or source. Congress might, for example, set an economy-wide emissions cap, set a schedule of annual caps or a formula, specify how EPA should go about determining the cap each year, or some combination of those things. If Congress specifies that all sources economy-wide (or some subset of them) will be subject to a cap, then it has answered the major question.
On your third point, see the paragraph on page 38 of my brief linked above. "Generation-shifting," as used in the CPP, was EPA's claim that it could set "achievable" emissions standards based on turning off a source. One can argue about whether new-source standards satisfy the statutory test (BACT) applicable to major industrial facilities and whether the agency's decision to set those standards at a particular level is supported by the evidence or otherwise arbitrary and capricious. But that's an entirely different inquiry from whether Congress empowered EPA to switch off more or less every source of emissions in the country as it so chooses.
This endless jockeying to try to get the courts to allow the executive branch to have more power is ridiculous and dangerous.
If Congress wants the EPA to regulate CO2 they should just pass that as a law. The reticence to act on this is bananas. Congress has all the power here -- they can give the EPA discretion or specify a mandate for how they handle CO2.
Handing the power over to the dysfunctional Congress is exactly how the oil and gas industry intends to win. They own enough congressmen to make sure any such legislation never makes it out of committee.
Handing more & more power to a president is exactly how all of the other presidential systems in the world have collapsed into autocracy. I do not think the oil & gas industry 'owns' more than a minority of Congressmen and women, however you want to define that term. Remove the filibuster, weaken the Speaker of the House and return more power to the old committee system- that's how you empower Congress and get more legislation passed. But whatever you do do not hand more power to 1 single person. The US still has a relatively weak presidential system compared to other countries, and we should strive to stay that way
Edit to include: And this includes administrative agencies staffed by executive branch appointees. I'd like to see the Venn diagram of confused people who think 'no we shouldn't have an imperial presidency' but 'yes courts should defer to agency interpretations when the agency is run by appointees of the President'. Like The Office meme- it's the same picture!
Do you think everybody at the EPA is fired and a new batch of people are brought in every time control of the White House changes? The main advantage of these federal agencies is that they were somewhat stable regardless of who is in charge. Career bureaucrats who just do their job decade after decade. Sure the head of the agency gets appointed by the President and they do set a general policy, but it's not like the rulebooks are getting rewritten every 4 or 8 years.
>The main advantage of these federal agencies is that they were somewhat stable regardless of who is in charge. Career bureaucrats who just do their job decade after decade.
The main assumption you are making here is that these career bureaucrats are not at all partisan, which is a pretty bold assumption to make. I'd like to see some evidence that this is true. That aside, if Congress isn't delegating something to the executive that's their fault. Write better laws. These people are mostly lawyers anyway. What, they forgot how to do it on the campaign trail?
No, the political appointees who run the EPA do change with a different administration. In the US system, the president (via appointees) runs the agencies.
Yes, the rulebooks are literally rewritten every 4-8 years. EPA examples, Trump renewed the permit for the Keystone XL pipeline (Obama had denied it), 'rewrote key rules curbing U.S. carbon emissions and other environmental regulations' (1), rolled back all of the Obama administration's fuel economy & emission standards, rolled back efficient lighting regulations, etc. He replaced the Clean Power Plan, redefined what species are endangered, weakened the Coal Ash rule, revised the Mercury standards. And so on.
He did all of these directly through the EPA- not by passing new laws. Then, Biden reversed all of these
That seems like a double edged sword. On the one hand, I'm sure every president would like a 50,000 man army to implement their preferred policies. On the other, how does one raise a 50,000 man army these days? This isn't Rome.
It's detailed more in the heritage foundation's Project 2025. The idea is to have an academy for grooming and selecting those political appointees. Essentially, they would have to pledge their allegiance to conservative values (and the president) and pass exams about what they should/should not believe in order to work in the bureaus. This would include vowing to believing climate change isn't a problem.
Of course, that's the short term "republican makes it into office" solution. Past that, to other presidents, I don't know. In my personal opinion, I think they're banking on never having to get there.
> Past that, to other presidents, I don't know. In my personal opinion, I think they're banking on never having to get there.
I think their logic is basically "these people function ~identically to if they were democratic political appointees, so we might as well get the benefits of them being political appointees when we're in office". Whether that's actually accurate can be debated, but it's not just "let's not worry about ever losing ever again".
They should at least stack rank the rank and file and at least quintimate all the slackers after each election cycle, regardless of winner, like clockwork, stack rank and renew. There is too much accumulated putrid growth in many departments -but it hardly ever gets sorted out.
"Trump" does not have a plan to do that and he has repeatedly denounced Project 2025, even pressuring the Heritage Foundation to fire the guy that led the program. I hate the guy but you don't need to lie.
Simply requiring an actual, physical filibuster would weaken it's power while keeping it as a check on excess or an option for a principled stand/PR stunt.
I think I understand the confusion- awkward sentence construction on my part. I am noting that all of the presidential systems that have collapsed so far have followed the exact same pattern. I am not sayin that all presidencies are autocracies, but of the presidencies that have already become autocracies, they all granted more & more executive power to the president due to real or imagined 'emergencies'.
I am not Juan Linz and I do not think having a president means we will automatically become an autocracy, but am more saying 'hey this is like the main danger to watch out for'
> They own enough congressmen to make sure any such legislation never makes it out of committee.
Campaign donations are a powerful motivator but they lose to real public pressure every time. The public is not very interested in this problem because it's incredibly abstract and none of the proposed solutions seem designed to actually solve it without forcing a religious level of austerity on them.
This definitely used to be the case, but since Citizens United those donations have absolutely exploded, and combine that with the gerrymandering of districts into very safe districts, public pressure might no longer be sufficient to sway those politicians, the jury is still out on that.
> but since Citizens United those donations have absolutely exploded
That case has implications respecting third party advertising but it has no bearing on direct campaign contributions to candidates.
> combine that with the gerrymandering of districts into very safe districts
The purpose of this gerrymandering is to reduce the total voter turnout. Most senators get elected with less than half the voting population turning out, many as little as 25%. Which means currently only 1/8 of your population needs to vote for you to win.
It's really a vulnerability they've created for themselves, but you have to have the confidence to run as a third party candidate in order to take advantage of this. This is a uniparty game that strengthens the false dichotomy and not really material for our purposes here.
> public pressure might no longer be sufficient to sway those politicians, the jury is still out on that.
Is there a case where significant public pressure has failed? Saying "voters want action on climate change" is meaningless. Of course they do. Who actually _wants_ to ruin the planet or destroy their health? Nobody.
How do we do this? Which metrics do we use? Who is responsible for implementation? What impacts will this have on average citizens? These are the questions that need answering, and unfortunately, there's too much actual division on these issues to foment a clear _federal_ plan forward let alone anything that would be effective or enforced world wide.
> That case has implications respecting third party advertising but it has no bearing on direct campaign contributions to candidates.
It's by now become rather clear that both parties have found loopholes to get around the so called firewall between the campaigns and these third parties:
Most Americans do actually want action on climate change, but what action? More fission power plants? Subsidies for electric cars? A carbon tax? A cap and trade system? There's not much agreement on the specific actions, hence the legislative gridlock.
> Campaign donations are a powerful motivator but they lose to real public pressure every time.
It is actually exactly the opposite [1]. The US is a country controlled by oligarchs.
"Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence."
In 1978 after the oil crisis Carter was already talking about getting off of foreign oil, we should develop renewable energy resources, be energy independent. Imagine where we'd be had we done even a few of the things he suggested?
Instead, the big oil companies, their lobbyists and OPEC made sure there would be abundance of cheap oil and then everybody just moved on and forgot about the long lines waiting for gas, rationing and other horrible stuff the oil crisis brought.
Not much has changed over the past 45 years which is pretty depressing.
Uh, ironically, the recently-overturned Chevron was at the time a big win for Chevron, the oil company, because SCOTUS required courts to defer to President Reagan's EPA which interpreted the Clean Air Act very generously in the oil companies' favor even though the courts ruled Congress intended stricter regulations. Now everyone is decrying Loper saying the EPA should be given nigh-unlimited authority since they agree with its policies under Administrator Regan. People support empowering whichever branch of government agrees with their politics at the moment. Things have just completely flipped in the last 40 years.
And the size of the federal government has become simply immense, even discounting the size of the world's largest military. It's by far the world's largest employer in terms of monetary spend.
So, overturning Chevron was just a tiny step toward curbing the massive power that government agencies have over the citizens that they purport to serve.
If someone comes into my computer and tries to take away all my digital duck hunting trophies I keep on my desktop, I'll be loading up Counterstrike and defending my home.
>> You say that as if supreme court justices aren't also for sale.
Is this something that's recent you're seeing? I haven't done any research to find out if this has been a thing for the entire time the court has been around. I just know the media has suddenly gone after the justices since the courts majority changed from liberal to conservative for the first time in its existence.
The parent could be referring to Justice Clarence Thomas and his well-documented past of accepting expensive things from Republican billionaires. [1] [2]
While willfully ignoring Sotomayor's own checkered past?
"Supreme Court Justice Sonia Sotomayor reportedly accepted nearly $2 million from Penguin Random House in a book deal, and then went on to sit in judgment of a copyright case involving that same company the following year."
Or the way she prodded institutions where she spoke to buy her books?
"Sotomayor's staff has often prodded public institutions that have hosted the justice to buy her memoir or children's books, works that have earned her at least $3.7 million since she joined the court in 2009."
Those dealings with Sotomayor are obviously sketchy and should not be legal, not sure where in the thread you got the impression that it was being ignored. But unless you are being intentionally dishonest signing a book deal is substantially different from receiving all expenses paid vacations. And given Thomas' willingness to throw away precedent in recent rulings, him receiving gifts in exchange for "nothing" puts him under even more scrutiny.
>> signing a book deal is substantially different from receiving all expenses paid vacations.
You do know the rules for disclosure were changed recently right? The ProPublica article used Thomas past dealings and then applied the recent changes to those dealings. That would seem, I don't know, a bit underhanded in their reporting no?
But it seems clear that the Court’s rules at the time all of this happened did not require that gifts of personal hospitality be disclosed. This includes the private plane trips. ProPublica fails to make clear to readers that the U.S. Judicial Conference recently changed its rules to require more disclosure. The new rules took effect last month.
Justice Thomas would have been obliged to disclose gifts that posed a conflict of interest involving cases that would be heard by the High Court. But there is no evidence that Mr. Crow has had any such business before the Court, and Mr. Crow says he has “never asked about a pending or lower court case.”
So then to review:
- Thomas had no obligation to disclose his trips
- The person he went on the trips with had no business before the court, nor did he ever inquire about any of the court's business.
- Thomas has said he will adhere to the new disclosure rules.
Yet:
- Sotomayor took $2M from a publisher who DID have business with the court
- Sotomayor was one of their clients and had an obvious conflict of interest
- She refused to recuse herself and ruled (shockingly) in favor of her beneficiary
And your take here is Thomas' was worst than Sotomayor's?
Especially when 1 in 4 congresspeople are still invested in the fossil fuel industry. Money talks.
> As of Dec. 13, 2019, 134 members of Congress and their spouses own as much as $92.7 million worth of stock in fossil fuel companies and mutual funds, according to an analysis of financial disclosures by Sludge. House members own between roughly $29.5 million and $78.2 million in fossil fuel stocks, while senators have between $3.8 million and $14.5 million invested in oil, gas, and coal interests. Members of Congress generally report the value of their investments in broad ranges, so it’s not possible to know exactly how much their stocks are worth.
So, the theory is, the oil and gas industry can afford a few dozen or hundred Congressmen, but can't afford a President, or a Secretary, or even a few unelected bureaucrats whose offices I don't even know how to name that are actually making these decisions?
The problem isn't that you are wrong. You're right that Congress is for sale. The problem is, everyone is for sale, so that's a null argument; it cuts against you exactly as much as it cuts for you.
I mean, that totally blows. Don't mistake me for celebrating this. But it doesn't work as a "let's give the $BRANCH power over this" argument in any direction.
Kind of a weird argument when the whole discussion is about a time when the executive stood up to the fossil fuel industry and heavily tightened regulations. Further, un-elected bureaucrats accepting bribes for official acts is plainly illegal* and they don't have campaign funds which is the primary way money moves from industry to congress' pockets.
Agreed. It's also a lot harder, more expensive, and much more easily detected to buy off the majority of Congress than a single President or Secretary.
You don't need a majority, you only need to buy off the committee chair. Maybe just enough to cover the gap (currently 2) if something manages to slip out of committee, maybe a few more if you think the legislation is going to be especially popular.
You think it's easier to bribe hundreds of people instead of one at the top? If it's money in government you're worried about, I have bad news for you. Everyone in government is susceptible to getting paid off, including (and especially) unelected people.
I agree with you but handing the power to the Executive Branch doesn't solve the problem.
The people need to demand more from their elected officials but the two parties have done an outstanding job getting us to fight with each other so we forget how the corporations are controlling everything.
As if there was not plenty of money to be done on renewables, replacing all the current fleet of automobiles, and of course all the financing that will be required to enable the green transition. As if the investor behind both industries weren't basically the same.
There are orders of magnitude more money to be made by the billionaires with a renewable based green transition than with oil. It will be the biggest transfer of wealth from the poor and middle class into the pockets of the bastardly rich in the whole history.
> huh? People are going to buy cars. They will be electric or they won't. Either way, people are going to buy cars.
I think that this is a short-term picture. The US infrastructure has been set up to make owning a car a very rewarding proposition, so, of course, lots of people own cars, and that will continue to be the case as long as things stay in the neighborhood of where they are. But there's no reason that future infrastructure decisions have to be made in a way that continues to privilege cars over other forms of transportation, and car ownership will follow, with a lag, the way that infrastructure decisions point.
Congress being "dysfunctional" is just a way of saying Congress doesn't agree to do what you think it should. If the political will to do this isn't there (and it clearly isn't, otherwise we wouldn't be having this conversation) then it shouldn't be done.
No, it says more than that. The most fundamental duty of Congress is to pass the budget. Well, how are they doing at that?
Lousy, that's how. Congress has been historically terrible at that the last few years. They can't even pass a budget. (No, the Nth continuing resolution for the next M months is not the same.)
So "dysfunctional" means "can't function", not just "doesn't do what I want".
Congress is only meant to pass budgets if they can agree on one. If they can't, then they aren't supposed to. Anyway, after a lot of bluffing and negotiation they inevitability get it done, the process you deride as dysfunction is simply politics. There's no rule that they must do it as fast or smoothly as you think they should. Calling Congress dysfunctional is just political rhetoric.
And if Congress doesn't pass a budget because it doesn't agree on one, the whole country is meant to grind to a halt. This is mutually assured destruction, guaranteeing that Congress will pass a budget.
Anyway, yes, Congress inevitably does always manage to pass a budget. There are sometime delays, the consequence of which is exaggerated to put pressure on the other side to give up ground in the negotiations, but at the end of the day it's just politics and people carry on.
> Anyway, yes, Congress inevitably does always manage to pass a budget. There are sometime delays, the consequence of which is exaggerated to put pressure on the other side to give up ground in the negotiations, but at the end of the day it's just politics and people carry on.
These two stances don't mesh.
But that misses the even bigger point. It takes Congress months of fighting back and forth on the budget every year. They barely accomplish anything else. Saying that they need to now write all of the federal regulations down to the tiniest detail (lest they spend all of their time in court doing nothing) is clearly unrealistic. Laughably so.
This is clearly under dispute and not a fact that can be stated so cleanly . The article itself makes it clear that the Supreme Court ruled in 2022 that this is not the case.h
This current supreme court is addicted to rolling back anything and everything that is opposed to a conservative position.
The clean air act was already ruled to include greenhouse gasses. It's not under dispute, this court just disputes it because they have the power and ultimately are playing an end game of fostering a conservative government, i.e. they have long term political interests.
Check out the book “Legal Systems Very Different From Our Own” for the millennia-old tradition that is “finding a way to interpret a holy text according to your politics”
I mean, the 1970 act did spell out certain places where the EPA has authority in regulating greenhouse gases, including specifically CO2.
But they did not authorize the way that the EPA was setting standards for gas-fired power plants. The technicalities here run deep, but the fact that some academics at Yale think that it should be allowed tells us nothing -- already, three of the most brilliant legal minds in the country have already publicly dissented from the Supreme Court's opinion on the subject.
In the face of the ambiguity, the bias should be for the legislature to act to correct the ambiguity. There is no constitutional issue at stake, just a question of what the act authorized. Congress can just deal with this.
EDIT: This is incorrect; as pointed out below, the 1970 Act did not mention greenhouse gases or CO2 specifically. As of the 2022 amendment to the act there are several explict areas where greenhouse gases are specifically mentioned.
> 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.
The argument is CO2 emissions lead to continued climate change which unless you think climate change is a hoax made by the Chinese to kill US manufacturing it is reasonably anticipated to endanger public health or welfare.
Read section 108, which explicitly says the EPA administrator has the authority to decide what is considered a pollutant. The Supreme Court held that CO2 should be considered a pollutant under this authority: https://en.wikipedia.org/wiki/Massachusetts_v._EPA.
So what exactly do we do when a Supreme Court justice willfully misreads clear and established law and precedent set by congress? Can we impeach them? IANAL, but that statue is plain english. I do not need an interpreter. Neither should any of you.
That does not contain wording "including specifically CO2", which was the assertion I responded to.
>> You may also be interested in the 2022 amendments
No, I was interested in the original assertion that the 1970 Clean Air Act "spell[ed] out certain places where the EPA has authority in regulating greenhouse gases, including specifically CO2".
Laws are not based off the specific wording, they're based off the spirit. At least in the US.
The clean air act says the EPA can determine what is/is not a pollutant based off whether it can harm the public. That, to me, means the law covers CO2. I don't understand how you can interpret it otherwise.
As the author of the post they were replying to, I can say definitively that this is a refutation of what I was posting, and you are arguing with the wind.
I made a claim about specific wording which was correctly pointed out to be incorrect. There was no claim made about the "spirit" on either side or interpretation. I made a factually incorrect claim that was pointed out to be factually incorrect; I don't know why you are continuing to argue.
If there's ambiguity, the Supreme Court should defer to the executive and let Congress pass a new law if they disagree. It doesn't make sense for the tie to go to inaction. We elect Presidents exactly so they can steer the executive in the direction we like! Requiring all three branches to agree (Congress passes the law, Executive actually does it, Court says it's okay) is a recipe for national paralysis.
No. That's not how it's supposed to work. Without delegation (which has happened), the presidency (and Executive branch broadly) is constrained by the Constitution, the laws set by Congress, international treaties (consequence of the Constitution), and restricted by the interpretation and judgement of the courts. If there's ambiguity the Executive can make their own call, they don't have to sit and wait, but they can then be challenged in the courts and have to stop acting in a manner judged inconsistent with the law, constitution, and treaties.
If it's truly a matter of ambiguity then the court is not adjudicating an inconsistency, it is inserting is own judgement about what the other party (Congress) said - when the other party has the ability to assert its intentions directly.
Yes, Congress can solve this buy doing their job and passing a law to clarify the fact. The fact they don't demonstrates the dysfunction in the US, and the craziness that everyone thinks they can get the executive branch to do an end run around the constitution.
How does the concept of “checks and balances” fit into your view? I ask because, as sibling commenter points out, that’s just not how the Constitution says it works.
The Constitution does not mention judicial review at all. Since it's ambiguous, it must be unconstitutional; therefore the Supreme Court must stop doing it. This is the same logic.
We can argue about what they intended, but here is what they wrote:
"The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source."
and
"The term “existing source” means any stationary source other than a new source."
Finally.. congress didn't hand EPA an unlimited authority to make decisions about sources. It handed them a process they must follow when it comes to ruling on "new sources."
With a law this complex, I'm not sure you can bring the intentions of a single sponsor into the consideration:
> The study, soon to be published in Ecology Law Quarterly, concludes that Congress “understood far more about the potential threat of anthropogenic climate change than either the [Supreme] Court or most commentators have recognized.”
This is an announcement and summary of key points of the study, it is not able to link to it because it's not been published yet.
They do sometimes share pre-publication drafts. Seems premature to put out an article with almost nothing in it. The information in the article lacks any sort of detail or even a logic basis for tying the points together. Plenty of policians make claims on a topic related to a bill that go farther than the actual bill that passes. So while one person has an interpretation the other members of congress can have different interpretations when passing the bill. That's why the preamble and the bill's contents are so important. Perhaps even the notes from the debate. But just a statement outside of those contexts? Bit of a stretch without seeing the research.
> The study, soon to be published in Ecology Law Quarterly, concludes that Congress “understood far more about the potential threat of anthropogenic climate change than either the [Supreme] Court or most commentators have recognized.”
I wonder whether this changes anything in practical terms. Can the EPA start enforcing the CO2 regulations again and take it back to the Supreme Court with this as part of the defense? Or is there another pathway to get a new judgement from the courts by taking this evidence into consideration?
End of the day we can always ignore the Supreme Court rulings. Thermonuclear option.
Marburey vs Madison was the courts interpreting the constitution to say that judicial review exists. Judicial review itself is a precedent that we've all been following in good faith.
I'd honestly love a historic review of judicial review and see if we think it's been a net positive or negative. For every civilian rights win there's also a dredd Scott, not sure how it's balanced on the whole. I've always thought it was a good thing and I like it in theory but... Now that I'm older I'm thinking about it's application in practice more critically
I have a pretty low opinion of judicial review, but I'm not clear that reviewing actions by administrative agencies actually qualifies as JR. Review is when the courts strike down actual laws passed by Congress. In this case it's an administrative action by an agency
Since Marbury vs Madison was so early on it would be hard to really figure out if it has been a net positive. We can make some assumptions about what would have happened, but I don't think it would really be practical to come to any conclusion.
Yeah but then why do you have to listen to any courts at all? EPA brings a lawsuit, you just ignore it. As far as I know without the courts they could just be arrested by local police for trespassing if they actually try to enforce anything.
With Chevron deference dead they won't be able to enforce anything about CO2 without it getting tied up in the courts and probably killed in one of the circuit courts.
Yeah, wait for someone to die and put someone else on the court. The Supreme Court has completely changed its mind on basically every important issue in the country's history, and it does so when the justices change, not when the evidence changes. They are not divine arbiters of truth, they're just people with opinions.
Flag it if you think it's off-topic, nothing is stopping you from doing that unless your karma is still too low (yours isn't). It'll get off the front page quick with just a few flags, though this one is also likely to trigger the flame war detector and get pushed down the rankings soon.
I love tech and software and fiddling with things and the beauty and elegance of code and the joy of discovering how things work, and the creativity ppl can have. And then there's posts like this and its like 'wow, these people suck, what am I doing'
I remember as a young kid, all the commercials with the tag line "CO2, the clean gas". Or something like that, I can only assume the Oil Industry had a big hand in removing CO2 from the act.
Sure you're not mixing that up with natural gas? Usually advertised as clean compared to other fuels (coal, especially for power plants, but also sometimes to gas and diesel for vehicles). Though often the comparison part was left out or left very understated implying that it was somehow non-harmful or non-environmentally impacting.
I couldn't find anything on Google under the tagline "CH4, the clean gas", and all of the marketing I could find called it natrual gas instead. It was marketed as a "clean" solution, laughable as that may be. I guess it's a little less bullshit than all of the "clean coal" marketing.
They wouldn't have advertised it as "CH4", that's not how people know it. It'd be methane or natural gas, more likely natural gas. Though the examples I'm coming up with are more recent than I was thinking (last decade) so unless GP is very young wouldn't have been around in their childhood. Continuing my search, but I have recollections of a 2000s push for natural gas that was heavily predicated on its "cleanness". Lots of city and school buses, for instance, were switching to CNG from diesel in that time period (and in comparison, CNG is almost certainly cleaner than diesel).
EDIT:
Ok, found some things. Google Image search for (no quotes) "clean natural gas" and set the range to 2000-2010. You'll find a variety of images both for and against this claim. Including things like "This Bus Is Running On Clean Natural Gas" (2009) [0] or "Clean. Affordable. Abundant. American. Natural gas is the answer. Tell Congress to put it to work." (apparently from 2010) [1]
For what it's worth, the linked press release's description of the Supreme Court's decision is wrong; the court did not, in fact, hold that "Congress had not empowered the EPA to regulate greenhouse gases," but that it could not regulate in the manner that it did. And, so far as the statute at issue is concerned, the evidence is overwhelming that it was never intended to empower EPA to restructure the nation's electricity system. I wrote a fair bit about this at the time, and was apparently persuasive.[1]
[1] https://www.supremecourt.gov/DocketPDF/20/20-1530/204857/202...