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
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).
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.
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.
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.
>I'm not sure what that has to do with this discussion at all, though
I would argue that is the central claim. Something can be law and ambiguous. The role of the court previously was to ensure the first part: that the law is Constitutional. Outside of Maybury I don't think anyone is disputing that. The difference is that this now says the arbiter of ambiguity is now the court.
Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality; that is a much more narrow scope than what you're presuming. In many (most) court rulings, they are very deliberate in keeping the scope as narrow as possible. This ruling is one of the exceptions, not the rule. But you don't have to take it from me. Justice Kagan states:
"Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not...In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar."
>Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to.
I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities. Again, the role of the court is best suited to what they have expertise in: determining constitutionality. Defining what an "emission source" (or any other domain expertise question) is outside that scope.
I would argue that becoming an "administrative czar" oversteps the bounds of a judiciary responsible for determining constitutionality to one that blurs the lines with the executive branch. In Kagan's words, it becomes an act of "judicial hubris."
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.
You use the term "This radicalized illegitimate SCOTUS" but you realize that the court was unanimous that the EPA had overstepped its authority under the law right?
The Court isn’t holding Congress to “strictly enumerated powers.” The constitution doesn’t say anything about the federal government being able to enact environmental legislation, but the Supreme Court has widely interpreted the Commerce Clause to allow it.
The non-delegation cases are about whether the elaborate and explicit separation of powers in the Constitution even means anything at all. The notion that you can have executive agencies making “regulations” with the force of law, and adjudicating cases through administrative judges, is already inconsistent with the idea of having three separate branches of government with clearly differentiated powers. The only question is whether that constitutional separation is mostly meaningless, or completely meaningless.
And the “emanations and penumbras” has nothing to do with “multiple protected rights.” If you are carrying a gun while protesting, that’s covered by the second and first amendments and you don’t need anything on top of that. “Emanations and penumbras” is a way to pull “rights” out of your ass that aren’t in the document. It’s classic mid-20th century white guy pontificating.
> 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.
What’s obtuse is thinking that Congress hid the power to restructure the energy mix of the country in a provision giving the EPA power to require particular kinds of pollution control equipment.
To be sure, there’s a lot of legitimate debate over the meaning of Supreme Court decisions. But a chunk of it is simply not undertaken in good faith. It is made to seem like a debate because one side simply doesn’t like the implications of things that are obviously true, such as “Congress hasn’t yet passed major laws addressing climate change” or “the Constitution doesn’t say anything about abortion.”
And I’m not speaking out of partisanship here. The US is simply extreme among developed nations at how creatively our Supreme Court reads our Constitution and laws. The Europeans don’t just read sweeping new provisions into decades-old laws. The EHCR, for example, has repeatedly declined to find a right to same-sex marriage or abortion in the EU Convention of human rights (because those rights plainly are not in there).
The US is more like second-tier democracies such as India or Bangladesh, where high court judges will just dl whatever they want with only tenuous support in the constitution or laws.
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 court seems intent on allowing judge shopping conservatives to gut any even mildly inconvenient law.
Going back to a "balance" where judges interpret law and no one else creates massive ambiguity across courts & greatly degrades any ability to govern. That seems to be the fantasy world that some parts of America desire. And that this court is working towards, hard as it can.
It interprets that only the court gets to allow or deny
Honestly I don't think you'd see a partisan ruling on this. There is an originalist argument that Congress has no power to regulate immigration and that it is the sole duty of the executive, but there are myriad ways the justices could get around that if they so desired. I'm no expert on the court, but I would imagine it would break 6-2 or better against the EO.
More generally, I feel that one of the main reasons the Supreme Court is such a powerful body nowadays, and why cases like this are considered so important, is because Congress has become so ineffectual. We have internalized the idea that the Supreme Court has the last word on every matter before it. But it emphatically does not. The Supreme Court is only the last word on constitutional cases. So many decisions - this one, certain decisions on gerrymandering - are completely overturnable by Congress.
The danger, as I see it, is that this case exists at all. The facts of the case are the state supreme court saying "our constitution doesn't allow you to gerrymander on partisan grounds" and the legislature saying "we can gerrymander as partisan-ly as we want". There's no fig leaf that this is somehow fair or reasonable. The contention is that they're legally allowed to, and therefore they will.
With that as the case, it feels like it hardly matters what the Supreme Court decides. It means that the laws of this nation are no longer about what's best for it, but about what we can force each other to do.
That won't be fixed, no matter what the decision is. And it's not the fault of the legislators, either. They are implementing what their constituents want. They will, almost certainly, be returned to office, especially if they succeed in court.
I would very much like the Court to stem the consequences of this, but they cannot fix the core problem. And I'll be blunt that I don't believe the Court has any interest in stemming the consequences, either -- for exactly the reason that I'm talking about.
This Supreme Court is, and always has been, political. The idea of the "textualist" or "originalist" interpretation of the Constitution as a philosophy is just propaganda invented in the 1980s shortly after the Federalist Society was founded.
This court seems determined to overturn Chevron [1], which is the basis for deference given to administrative bodies empowered by Congress, the so-called "administrative state" (or "deep state" depending on how far down the rabbit hole you are).
It's the same politics behind the major questions doctrine [2]. This was an approach invented by this court that basically says in matters of statutory interpretation if the issue is sufficiently large, which is subjective, then Congress needs to be absolutely explicit in the powers granted. This was used to deny student loan forgiveness because even though the exeuctive was granted this power, the Court decided the amount was large enough that Congress had to be more explicit.
Put another way: the legislative branch is overruling both the legislative branch that drafted a law and the executive branch that signed it into law. It's quite literally legislating from the bench.
Chevron is another prong in the attack on executive authority. Instead of deferring to experts in the various departments, Congress would need to decide every matter. So if the law isn't explicit enough (according to SCOTUS) then Congress would need to decide every little thing with new laws.
This is untenable. Congress doesn't have the bandwidth to, say, decide fish quotas or hunting seasons or, more importantly, things like what constitutes "clean water" and the allowed actions to enforce that.
This is a very deliberate attack on government itself. It's a form of deregulation to transfer even more wealth to the hands of the very few. Why? Complying with regulations costs money. That's what this is about.
Something I don't understand about this interpretation: the decision concerns an interpretation of the Clean Air Act, a law passed by Congress. It's a 60 year old act, sure, but it's an act nonetheless (and one that empowers these kinds of statutory interpretations by the executive branch).
Where is the buck being passed, precisely? To me this reads more as a cynical prediction by SCOTUS (that Congress will continue to deadlock, effectively granting victory-by-default to conservative causes). And they probably won't be wrong in that prediction, if the last decade serves as evidence.
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.
But isn't it literally the Supreme Court's job to interpret competing possibilities of extant laws? This seems like the weakest argument you could think of.
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
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