I really don't understand the decision. In my mental model the executive branch exists to implement the laws that Congress passes, Congress deliberately leaves leeway in laws to give the executive branch flexibility, this flexibility has been previously affirmed by the court decision Chevron v. NRDC.
This decision seems to give more power to Congress but on net I think it makes the laws Congress passes weaker because it strips away the effectiveness of the implementation.
The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.
If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.
Congress doesn't remotely have the bandwidth to explicitly write out and decide all the little rules it takes to regulate the country, even if they had a clue what they were doing in each case
It's pretty clearly designed to dismantle the federal regulatory apparatus
Then it should explicitly delegate that to the executive branch where applicable, as it does for other things. You don’t just throw away separation of powers because it’s convenient.
Congress has plenty of time and money. They are too busy jockeying for votes to do anything. The problem with congress is that they are too focused on winning elections instead of doing the GD job. I view this as yet another reason why we need strict term limits for members of congress. There are too many leeches.
Typical staff sizes for congresscritters seem to be about 60 people. I managed to get some salary data on them, and $5M total per congresscritter seems to be reasonable [0]. So, I dunno, double that cost for ancillary expenses and the like, you get ~$10M per congresscritter. Multiply that all out and you have ~26,000 people and ~$4.4B total.
The total spending of the whole US federal government is ~$4T with ~4M people employed. So, ~1000x the budget and ~150x the staff of all of congress and their staffers.
Sure, yeah, you can double or 10x the staff of congress, even up the budgets by 100x. Maybe only 1/10th of the budget is actually needed. Maybe you can get by with giggling the staffer pay ratios. Whatever. You're still really short.
Oh, and you still have to have the staff that was doing the original jobs of the congresscritter.
Unless you completely rejigger how congress works to the tune of a ~100x increase in budget and staff[1], there's just no way congress can take over that job.
[0] There's not really a database on this that I found. I just took a random sample of 35 congresscritters and then googled for their staff sizes and salaries. It's not definitive and it varies a fair amount, but 60 seems to be a high yet good estimate.
[1] Imagine trying to grow any business or enterprise by 100x. It would take a very very long time for the dust to settle. Let alone working all the kinks out of the system that you're creating from whole cloth. And that's a new system. You'd also have the fight with the old system when trying to do this between congress and the exec. branch. The likelihood of it occurring in any kind of reasonable timeline and in any kind of reasonable effectiveness is precisely 0.
Government works off of law, not merely intentions. Intentions can change. Laws are documented. otherwise what’s the keep of random police officer from deciding that they have the ability to regulate the applications on my phone? After all, they’re just keeping me safe.
Legislation often deliberately leaves interpretation of statutes to the agencies implementing the laws. The legislation can just say "The parks department shall keep the park safe and well-maintained," without specifying what 'safe' means, or how often they collect the trash.
Yes, a functioning government depends on parties acting in good faith and assumes everyone is working for the common good, not always achievable when vast sums of money are in play. This case is a great example.
Yes, the "minority" party that's currently 2 points ahead on the generic Congressional ballot (https://projects.fivethirtyeight.com/polls/generic-ballot/), won 1.5 million more votes than Democrats in the 2016 House elections, and is on pace to win several million more votes than Democrats in the 2022 House elections. That's an interesting definition of "minority" you have there?
If we had a parliamentary system, I would agree with you. But the actual on the ground reality is Congress does not represent the actual will of the people due to malaportionment.
The main implication here is that the policy making decision tree needs to change.
Whereas before it was:
Do we have the political will to enact this from sea to shining sea via Federal legislation?
-> YES/NO
-> Can we enact this from sea to shining sea via fiat through an existing administrative agency?
-> YES/NO
-> Can we enact this from sea to shining sea via the SCOTUS?
-> YES/NO
-> Can we enact this policy gradually via the States?
-> YES/NO
Now it is:
Do we have the political will to enact this policy from sea to shining sea via Federal legislation?
-> YES/NO
-> Can we enact this policy gradually via the States?
-> YES/NO
The States themselves don't have the "malapportionment" problem, and insofar as Congress does, it's because the system was always set up for change to occur from the bottom-up, not the top-down. The EU refers to this as subsidiarity [https://en.wikipedia.org/wiki/Subsidiarity_(European_Union)]. Congress is structured in exactly the same way as the EU, as well as other federations like Australia and Switzerland.
Justin Trudeau became Prime Minister of Canada last year despite his party winning almost 200,000 fewer votes than Conservatives. Does that mean that Canada's Parliament "does not represent the actual will of the people?"
If 'we had a parliamentary system" Biden would be shown the door next year when Republicans again win a majority of not only House seats, but total votes for House candidates.
Looking at the results for only the two largest parties when there are five parties in Canada's Parliament and none has an outright majority of seats is completely misleading.
Trudeau can only govern with the support of the NDP. Liberals plus NDP got a majority of the popular vote[1].
> The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.
> If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.
Huh? Remember Ajit Pai? It hasn't been that long.
It's profoundly anti-democratic for major decisions to be made by unelected, unaccountable technocrats (with a comment period) than by actual elected representatives who can at least theoretically be held accountable through elections.
IMHO, the solution to this is probably just to pass a law that authorizes this regulation that simultaneously pays off the states who object so they feel it's an overall good deal for them (e.g. fund a nuclear plant and a bunch of new infrastructure for each of them).
Ajit Pai got kicked out when the administration changed! Exactly how it should be!
They're not unaccountable, the president can dismiss them. Just like Trump fired Janet Yellen, and SCOTUS already ruled the structure of CFPB where removal for cause was required is unconstitutional.
The idea congress is "democratic" is a huge joke. There's a reason why the House of Lords has essentially no power any more. Let alone the literal open corruption campaign finance is.
Everything you say may or may not be true, but it doesn’t address the point of the ruling or what's under debate. If you don’t believe that the Congress is representative of the will of the people, your issues are not with this or that law or SCOTUS ruling, but with the fundamental structures of the American republic.
> Biden is elected. He appoints experts. Experts craft regulations. When regulations screw up, Biden gets elected out. Experts get kicked out.
So just elect a king, then? There's a pretty strict division of powers in the US, and for good reason. Congress just needs to do its job and pass some legislation.
> Jesus, can you put aside the taking points and just think for yourself? Obviously no one is unaccountable. This is not some tin pot dictatorship like Fox is telling you to pretend it is.
I can tell you I am thinking for myself, at least as much as you probably are. Making an accusation like you have is also, frankly, against the site guidelines and not conductive to discussion.
Congress is not going to do it's job in this political climate and we don't have the luxury of new found proceduralism when so much is at stake.
"Just elect a king then?"
No, because that would be creating unaccountability where I just demonstrated it already exists. How is putting everyone's future in the hands of Joe Minchin and Mitch McConnell an improvement on that?
And again with the hyperbole. Instead of kings, let's stay in reality - the accountability issue you speak of is a red herring. Environment degradation presents an existential danger. Current legal and regulatory procedures are already slow in addressing it but they could have worked (for everyone except polluting industries and their shills). Scientist agree that faster action is required. Legislative obstructionism and a new appetite for legal originalism are just more obstacles that we can't afford.
All these points can be defended. You're just repeating ungrounded, abstract, Fox News, boogie man talking points without demonstrating any of them. I apologise if I caused offense, but saying that's thoughtless is not an accusation.
Congress won't act, the Executive isn't permitted to do much even with what they were given by Congress, and the People are powerless to do anything unless 100% of them vote, which never happens, and even then may be overruled in many places.
Under a legal constitutional system, when Congress "won't act", the laws stay the same as they were.
The Executive branch taking unilateral action beyond its authority because the Legislative branch "won't act" scares me even more, for the long-term health of our democracy, than laws staying the same as they are now for a bit longer.
> People are powerless to do anything unless 100% of them vote
I'm not following this logic? Why do we need 100% of people to vote?
I assume you mean to "oust ineffective elected officials" but I suspect that there are many people that don't vote because they are "happy" and don't feel at risk of their desired official being outed. But again, I might be off base. Hoping you can clarify more of what you meant.
Most of the public cares about climate change and wants the government to do something. The overwhelming majority of the public supports abortion in some form or other. If they actually voted maybe we could change things, but lots of people just don't vote.
Having participated in several cycles of political organizing, the actual ground game is Get Out The Vote (GOTV): not trying to get people to change their minds, but getting people to just get off their asses.
> Most of the public cares about climate change and wants the government to do something
Most of the public cares about climate change and wants the government to do something so long as it doesn't cost them anything (Or more precisely, more than 10 $/mo)[0]. Or you can just see the consternation about gas prices right now to predict how well any climate change related regulation that actually materially affected carbon production would go.
Many people don’t vote because they’re skeptical that their vote can affect anything — either because they’re in a definite minority in their legislatures or they think elections are bought, in a “changing minds” sense.
It's still very much an open question as to whether congress is allowed to abdicate its power of rule making to the executive branch. The constitution seems to imply that the answer is "no," but the past interpretations of it say "yes." Chevron is a younger precedent than Roe.
> It's still very much an open question as to whether congress is allowed to abdicate its power of rule making to the executive branch. The constitution seems to imply that the answer is "no," but the past interpretations of it say "yes." Chevron is a younger precedent than Roe.
You say abdicate. Not true.
Congress is obviously empowered to delegate.
Please be specific. Who (written where?) thinks this is an open question? Please cite evidence of this.
This is also a common theme of many recent cases. Examples include: American Hospital Association v. Becerra, SEC vs Cochran, SEC vs Jarkesky, Gundy vs United States.
It is not clear that Congress can actually "delegate" the power to write laws.
Nobody denies that "Congress deliberately leaves leeway in laws to give the executive branch flexibility."
The whole point of this case is that Congress gave the EPA leeway to decide standards and scrubbing technologies for toxic pollutants, and the EPA stretched that leeway far beyond what Congress intended to address a completely different problem involving a non-toxic alleged pollutant.
The court has already ruled in Chevron v. NRDC that executive agencies have deference in interpretation of statues if Congress has not explicitly granted that power. The Clean Air act was passed in 1970 to ensure air quality, through science and the advancement of our understanding the EPA has identified CO2 as a toxic pollutant. I don't understand why we need an updated law by Congress when the EPA is much closer to the issue.
That limiting the administrative state is far from a monumental changing of the rules. Nobody is challenging the administrative state per se. The major doctrines principle is just being expanded, which limits Chevron, something that only came into being a few decades ago.
That's an OK summary of FedSoc talking points, but you're missing some of the barbs. Might want to try again.
The effective reuslt of the non-delegation doctrine is that, when Republicans do not like a policy outcome, Congress is required to employ a time machine to give explicit instructions to an agency decades ahead of time.
Quibble all you like, it has been that way for living memory, and reversing this is going to cause an enormous amount of chaos, because the modern state is built on these assumptions.
This is not some minor change, you're going to throw the federal government into chaos. I know that's the goal for a lot of people, but they should have the courage to admit that.
Discussions about the EPA seem to have to magical ability to make people forget that gems like the DEA and DHS exist. Heck, until recently the FCC was headed by a corporate shill.
Avoiding chaos is not a valid reason for allowing a legal injustice to persist even one day longer. I support legal mandates to reduce emissions, but it needs to be done the right way as an Act of Congress, not by unelected bureaucrats creatively reinterpreting a law to suit their political goals.
Please don't cross into flamewar like this. It's not what this site is for, and it destroys what it is for.
Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.
The dissent indicates the power is already explicitly granted in the EPA statute plain as day. It really isn't clear to me what language would satisfy the majority.
"The EPA may regulate emissions that contribute to global climate change" would also do the trick.
These laws are all quite old, many pre-date the EPA even and are from the 1950s and 1960s. They were clearly written for toxic pollutants, which carbon is not.
Let me ask you plainly: are you a lawyer? You seem well informed, but not lawyerly. I feel like you have good theoretical knowledge of how this should work in an ideal world, but not as much understanding of how it works in practice.
Why do you propose every single atom needs to be explicitly listed? 42 USC 7411 does grant EPA the power to determine what emissions need regulating, and how to best regulate them.
The decision looks simple and correct to me, even with only reading from the very left biased BBC article.
Despite your very right biased comment, I don't buy the idea that congress needs to write legislation down to specific policy details that might come up with every minute aspect of what is intending to be legislated. I don't think elected politicians are capable of being knowledgeable enough to give specific guidance on the broad range of issues necessary to govern the entire country.
I mean, do you really want a US senator voting on what level of chemicals are allowed to be present in drinking water? Is that the goal here?
Right now, the corporate legacy media are working hard to paint the false narrative that the current conservative justices are extreme partisan hacks. Don't fall for their deceptions. Do your own research.
And if I do my own research and decide that the current conservative justices are extreme partisan hacks?
> do you really want a US senator voting on what level of chemicals are allowed to be present in drinking water?
That’s not the level of granularity here. Using your hypothetical example about clean drinking water, Congress would need to delegate authority to EPA to regulate clean drinking water instead of EPA inferring or assuming it has that authority because of some other unrelated statute. Congress itself would not decide what a safe level of arsenic in drinking water is, EPA experts would.
Congress itself would not decide what a safe level of arsenic is, EPA experts would.
But as you said the EPA only would have the authority to regulate "clean drinking water", and since arsenic isn't drinking water, then the EPA would have no authority to regulate it unless Congress specifically says so.
The Major Questions doctrine is an invention of the Roberts court that no court before has even considered.
So yeah, they made up new rules, and yes, you're right, that the rules they made up to achieve a certain goal indicate that those goals are indeed correct.
Edit: The unsaid part of the "Major Questions" doctrine is that what it basically means is that the only decision maker in the US government is the Supreme Court.
This Supreme Court has chosen to parse Congress's bills text both strictly and loosely depending on whether it achieved their political priors. Further, they've alternatively decided to use, and disallow the usage of public statements by Congress members and/or the President for the same reason.
This is little more than a dismantling of the US govt.
To quote Kagan's dissent in this case: "The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get out-of-text-free cards".
>> The Major Questions doctrine is an invention of the Roberts court that no court before has even considered
"The major questions doctrine originated in two Supreme Court decisions: MCI Telecommunications Corporation v. American Telephone & Telegraph in 1994 and FDA v. Brown & Williamson Tobacco Corporation in 2000."
> Right now, the corporate legacy media are working hard to paint the false narrative that the current conservative justices are extreme partisan hacks
Well they are, and I don't need "muh mainstream media" to tell me about it. I can draw that conclusion based on primary sources, i.e. the court opinions, the justices' own words and actions, etc.
I see that you haven't let facts get in the way of a good theory.
I don't think you've read the dissenting arguments yet.
The core of this case is how do you interpret legislative text. The current Court is taking a radically strict view of legislation. They act like they are only reading the words. But in fact everyone has to interpret written words somehow. The question is what context do you use when you interpret the words.
Also keep in mind how the conservative justices were picked. Even if the justices truly decide cases based on non-partisan judicial ideologies (doubtful), the composition of the court has been picked in such a way that their decisions have conservative outcomes written all over them.
It's not like they cornered the decision into their own branch of government like they did with abortion (before Dobbs).
If there's disagreement on how a text should be interpreted I don't care whether a conservative court produces a different opinion to a liberal one.
I care whether congress still retains the ultimate authority in the matter, and in this case it does.
If congress thinks the court is wrong, it can say so.
However I think you'll find that just as there is disagreement within the court as to what this text actually means - there is just as much if not more disagreement in congress.
If congress itself is in disagreement - I think being radically strict is a good way to go.
I think it's healthy for judicial review and separations of powers for legislative interpetation to be kicked back to congress if there's any disagreement.
We have 50+ years of Congress delegating authority and blame to various other branches and groups without actually legislating it, which gives politicians perfect cover and someone else to blame.
If Congress wants to do something, they can pass the law to do so.
Ever since the "it's not a tax healthcare penalty" was upheld by the Court as "yes it is you idiots" it's been painfully clear that Congress wants no part in actually doing their job.
>We have 50+ years of Congress delegating authority and blame to various other branches
This became very apparent to me after pushed Congress to pass an Authorization of Military Force around ~2014. They balked, effectively continuing the trend of delegating their war-making abilities to the executive branch.
Presidents are disposable; congress critters are for life. They'd much rather have a figurehead take the credit and blame, since no matter what they're gone in a max of 8 years.
This reminds me how was Ben Shapiro burned by conservative guy from BBC. And Shapiro called him 'liberal'.
Anything that is not regressive is by default left/liberal for these people.
You have made God from your Constitution while in other countries it is an tool. You have just one more party than China and call your self beacon of democracy.
Tunnel vision.
If you can't see this article as left-biased, then you have some serious blinders on. If you're willing to take them off for a second, here are some major bias flags:
* It only quotes one legal expert, Hajin Kim, who paints the ruling in a negative light. There are no quotes from any other legal expert with a differing viewpoint.
* It puts high priority towards telling us how the feelings of environmental groups got hurt: "Environmental groups will be deeply concerned by the outcome as historically the 19 states that brought the case have made little progress on reducing their emissions - which is necessary to limit climate change."
* It quotes from a U.N. official, which is of course only going to have negative things to say about it. The U.N. could care less about whether a policy hurts America. The BBC also fails to mention how similar policies in the EU have led to more dependence on Russian oil, which was absolutely disastrous in hindsight. Don't knock out your current energy infrastructure when you have nothing to replace it with.
* The BBC focuses on what it perceives as the Supreme court bucking decades of precedent: "For decades, the Supreme Court has held that judges should generally defer to government agencies when interpreting federal law."
“We joined WV to fight the EPA’s overreach & challenged the agency’s overly-broad interpretation allowing them to regulate almost any part of the economy, the consequences would lead to higher utility bills, job loss and overall increased energy prices. This is a huge win for MO!”
“This is a big victory for small businesses and a big defeat for the Biden administration and the regulatory state,” Ortiz said in a statement provided to The Daily Wire. “Whether it’s greenhouse gas emissions, Covid lockdowns, vaccine mandates, or scores of other issues, the Biden administration keeps claiming authority it does not possess, as the Supreme Court ruled today.”
The BBC doesn't care at all about the sheer economic damage that would have been dealt to the relevant states. The BBC also doesn't care at all about the fact that the federal bureaucracy has grown staggeringly in size and power over the past decades, or what that means for our constitutional republic. The BBC doesn't care that our courts have been ruling very much for the left for the past several decades and we are just starting to see a reversal back towards the center. And that's fine. The BBC is in Britain and shouldn't be expected to care about these things. But please don't pretend they are not left-biased on this issue.
> The major questions doctrine works in much the same way to protect the Constitution’s separation of powers. ... It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable “ministers.”
Congress will never have the bandwidth or speed to tackle every problem via legislation. Delegating areas to expert "ministers" is the only way to have a functional government in today's complex world.
This seems like just another reframing of "my ignorance is just as good as your knowledge".
Your citation doesn't entirely support your argument. The court said "[vast] economic and political significance." This seems like a power grab by the court because now they and they alone can decide what has "vast significance," not the legislature and not the executive.
> decisions of vast “‘economic and political significance."
How is "economic and political significance" defined? From what I understand of the decision, it's defined as "6 of 9 people on SCOTUS don't like this regulation." And the deeper you dig into it, the more you find that these 6 people are willing to throw out just to be able to strike down this policy decision.
Supposedly, these 6 justices are advocates of textualism--the actual text, as written in the statute, should be dominant in the analysis of what can and can't be done in terms of interpretation. And here they completely ignore that in favor of trying to second-guess what Congress intended because... they can't use textualism to achieve what they want, I guess.
This is the crux of the problem. The "Executive branch" is basically the cops. That leeway lets the cops invent law, prosecute you, and potentially imprison you. There's another case where the executive branch effectively acted as the legislator, cops, and the judicial branch (they prosecuted someone for a rule they created and found them guilty, all internally).
Congress needs to do these things, via simple and explicit laws that are clear and easy to understand. The role of the executive is _enforcement_, while the judicial arbitrates.
This decision seems to give more power to Congress but on net I think it makes the laws Congress passes weaker because it strips away the effectiveness of the implementation.