Headlines about Supreme Court cases are almost uniformly misleading, because they suggest the Court is making decisions on policy issues rather than legal issues.
The Clean Air Act does not purport to give the EPA blanket regulatory authority over anything involving emissions into the air. It has detailed provisions focused on reducing the amount of toxic pollutants, in particular through the use of control (scrubbing) technologies. This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.). The Court decided that the statute did not confer on the EPA the power to do that. The relevant discussion begins on page 16.
This decision gives legs to something that has been called the "major questions doctrine." The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem. As applied here, that means that the EPA can't rely on authority delegated by Congress to, for example, tell coal plants what kind of scrubbers they have to use, to tackle climate change. pp. 17-19.
> Headlines about Supreme Court cases are almost uniformly misleading, because they suggest the Court is making decisions on policy issues rather than legal issues.
This is the naive version of how SCOTUS works that they teach us in elementary school.
History has shown that the Supreme Court is a political body with its own political agenda. The doctrine and precedent cited is used as a justification for whatever policy they actually want to enact.
Yes, there are some guidelines and guardrails, but this is a case of the tail wagging the dog. They choose their interpretation of law based on the actual impact they want to have on society.
The majority of justices on the current Supreme Court have been doing a good job of sticking to the law rather than attempting to enact policy. What you’re describing is a good criticism of the mid-20th century Supreme Court, but the current Court has done a good job of rolling back those excesses.
I strongly disagree.
I see this current court having extremely low legitimacy engaged in naked power grabs:
In one session they’ve removed the ability to sue over Miranda rights, stricken down a fifty year precedent and told a state that they can’t enact their own concealed carry act.
I don’t doubt that you will claim that these actions are the logical course of originalism in its purest form, but I find it judicial activism of an obtuse society-wrecking despicable sort.
They shall go down in our childrens history as villains.
Per the topic of this particular judgment, they agreed to hear a challenge to a non-law!
The Obama era Clean Power Act is not law!
This court went out of their way to steal authority thst congress specifically placed in the EPA and based their judgement of overreach on a non-law proposed bill from over a decade ago.
I allege that they are corruptly serving the Federalist Society agenda and deliberately dismantling environmental regulatory bodies for clear goals the Federalist Society maintains
And yet, in two of the examples given - the one under discussion, and the NY state concealed carry law - they took away authority from congress and a state respectively.
I would greatly disagree that it is up to the voters. It is only up to the representatives. Only states with binding resolution allows for voters to enact policies while major of states only allow representatives. There are numerous stances where the people fully support a policy while the major of representatives reject the policy and adhere to their political party and group think. If the voters had the power then we should be able to override legislation that the the current representatives supporting. I hear it all the time with representatives, we need the power to override the Governor, but never hear the people need the power to override the representatives and or Governor. Voting in new representatives has no correlation to enacting polices we the people want and demand.
United States of America is currently legislatively oppressed.
Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
But, conservative justices clearly had a bone to pick there, despite obvious conflict with the words of the constitution. For some reason.
There's a long and storied history of things being in conflict with the constitution and justices simply not caring. Slavery and Dred Scott come to mind, and although I'm sure there's plenty examples peppered in from other parts of the grand political spectrum, it's never been a well kept secret that the conservative M.O. is noticeably bolder and shameless in almost all regards, its major strength actually being in its willingness to use every tool at its disposal with minimal concern for blowback or legitimacy.
The recent state law strike down coming across as highly ironic (but probably not to conservatives since it achieves the actual goal not of ethics or consistency, but of simple victory) because so much of what conservatives got away with for decades directly defying the constitutional rights was based heavily on the concept of state's rights. Like informal slavery/servitude after the war, or keeping your elections nice and extremely predictable until that awful civil rights movement.
"Textbook" has nothing to do with this, or any of the wild departure of rulings being made in recent times. It's all very, VERY simple strategy: use what you have; dismantle what you can; build defenses where you can; you're in this for the Party.
It's interesting you say these things because it's exactly how the right views the left, and it's exactly what they say about them! Just an observation, and an interesting one.
> Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
This is not at all true. Yes, there are lots of Christians that don't support abortion. Yet, there are many Jews that do and specifically cite their religion.
While religion may influence worldview, the fundamental abortion question comes down to the fact that the Constitution does not define when a person becomes a Person. I think the recent legal ruling was proper because of the specific omission of abortion in the enumeration of federal powers.
This EPA decision, however, I think is wrong, because the major question doctrine cannot be consistently applied and is constitutionally baseless so far as I can tell.
Edit: forgot to write:
> There's a long and storied history of things being in conflict with the constitution and justices simply not caring.
I imagine everyone thinks this about some things. I agree with your assessments of bad precedents above, but conservatives aren't the only ones that do this. FDR threatened to pack the court to get his way with the New Deal and the Wager Act, which included things I believe are unconstitutional such as Social Security, Minimum Wage, Medicare, etc.
>It's interesting you say these things because it's exactly how the right views the left, and it's exactly what they say about them! Just an observation, and an interesting one.
This is not an interesting observation but a disingenuously naive hot take straight from right wing reactionaries that conveniently or ignorantly ignores reality and the history of radical theological propaganda that’s being crafted by conservative think tanks and disseminated by their media orgs in a campaign to manufacture consent and shift public opinion. This particular tactic is called projection.
>>projection:
>>Psychological projection is the process of misinterpreting what is "inside" as coming from "outside". It forms the basis of empathy by the projection of personal experiences to understand someone else's subjective world.
>I think the recent legal ruling was proper because of the specific omission of abortion in the enumeration of federal powers.
Then abortion is plainly protected by the ninth, tenth, thirteenth and fourteenth amendments. One must use their ideological or theological beliefs as renegade dogma in order to reject the protection afforded by these amendments.
You cannot realistically expect 21st century America to agree with you.
If the constitution DID oppose a minimum wage, and it doesn’t, I would say ditch the constitution. Common sense.
Thing is, all this legalese mumbo-jumbo is a racket and a scam. The constitution is written in plain English in a rather common vernacular.
So-called “conservatives” have hijacked a silly notion of knowing the original intentions of the founding fathers and delivering an unbiased truthful channeling of that into a winning strategy.
To the rest of us it’s rather obviously a scam.
>So-called “conservatives” have hijacked a silly notion of knowing the original intentions of the founding fathers and delivering an unbiased truthful channeling of that into a winning strategy. To the rest of us it’s rather obviously a scam.
These same justices will toss contradictory evidence whenever it is at odds with their goals.
> Well it's always seemed pretty cut and dry that the whole "abortion" controversy is largely a religious crusade and that anyone pretending to favor the constitution would call it mixing church and state.
I'm not sure why you would say that. The late Justice Ginsberg was a frequent critic of Roe as case law (despite being an ardent advocate of abortion) and thought the fundamental reasoning used in Roe was defective. [0] Roe was roundly criticized from jurists from both the left and the right on a number of fronts. It was bad law that ruled broadly on a highly divisive topic. Some folks strongly agreed with the outcome, so it became a third rail. Overturning precedents like Roe, while controversial, is healthy and gives us the opportunity to replace it with something on more firm legal footing.
> I strongly disagree. I see this current court having extremely low legitimacy engaged in naked power grabs
Your disagreement doesn't have any effect on reality.
Care to back up your claims with actual evidence?
> stricken down a fifty year precedent
Is it somehow bad to strike down old precedents, regardless of content?
> told a state that they can’t enact their own concealed carry act
Is it somehow bad to tell US states that they can't do things that would violate the US constitution, which is explicitly meant to apply to all states?
> obtuse society-wrecking
Translation: "these rulings don't agree with my political positions" (so I'm going to use language that conceals my preference to suggest that they're bad).
> They shall go down in our childrens history as villains.
Not a constructive addition to the conversation, smells of emotional manipulation.
So flip the entire thing and say Congress and the presidency were hyper-progressive. Do you not think this court would use the constitution to strike down their laws (say universal healthcare or something)? They are only rolling back these excesses because it fits their ideology.
> Do you not think this court would use the constitution to strike down their laws (say universal healthcare or something)?
They upheld Obamacare again just last year.
> They are only rolling back these excesses because it fits their ideology.
This is just liberal projection. Liberal justices almost always vote as a unified bloc on major cases based on the results. It's always the conservative justices that go wobbly: Thomas voting against federal marijuana prohibition, Roberts repeatedly voting to uphold Obamacare, Roberts opposing overtrning Roe, Kennedy finding that the Constitution protects same-sex marriage, Gorsuch and Kavanaugh finding that the Civil Rights Act protects sexual orientation, etc.
I would not be surprised if the current right leaning super majority guts Obama care too (if a case comes along.) Thomas has already indicated he supports rolling back gay marriage etc.
>Thomas has already indicated he supports rolling back gay marriage etc.
That is not exactly accurate. What Justice Thomas wrote was that cases setting precedence in the area of due process may need to be reconsidered due to the same shaky legal underpinning that Roe v. Wade sat on.
It is the result of that revaluation that could impact Obergefel. Certainly, he could very well hold a negative opinion personally about gay marriage, but his suggestion could create issues for his own marriage legality as well. I am sure he is intelligent enough to realize this—which begs the question why would he suggest it if it could negatively impact him?
I suspect that the answer may be that perhaps he feels it’s important to correct a legal error, so that subsequent judgements are stronger. He likely feels that congress should be creating the laws, as opposed to us relying on legal fiats. I know I agree with that. Congress has a duty to us set forth in Article 1…it’s time they started taking that seriously. If they did their jobs and wrote good laws, what we have seen in the last week is less likely to occur.
While I understand your point, the issue is most progressive issues aren't easily traced back to clear laws or the Constitution. These very frequently depend on loose interpretations or extrapolations such as "general welfare", etc.
It would be better if these were clearly codified in laws vs being on shaky ground forever. E.g Roe v Wade
They have been hyper-progressive, and hyper-regressive. As RBG noted - the USSC got out "in front of" the law with Roe V. Wade - which resulted in it invalidating every state law (pro or anti-abortion) and caused a era of dramatically increased polarization.
They also wrote Dredd Scott, Ferguson, Citizens United, and Korematsu.
At what point do you constrain the power of the supreme court to make law as opposed to interpret it?
The Supreme Court has done far more damage then help, historically.
Saying that Roe v Wade resulted in an era of increased polarization is completely sidelining the facts that
A) women we're suffering from the lack of the right at the time.
B) that churches and GOP actually drove the polarization, they chose to use it as a device to divide.
It would be like saying abolition of slavery was too soon because it caused the civil war... Who cares the law shouldn't have to wait for cave men to move forward.
Funny enough - all of the actions that the Supreme Court took to entrench and strengthen slavery arguably were one of the things that caused the Civil War.
a) no. States were in the process of legalizing it - with restrictions far more in line with the rest of the democratic world.
b) no. In fact, most churches (the SBC for example) polarized _after_ roe v. wade. In fact, most evangelicals were left-leaning prior to this ruling. (Some partisan hacks will insist that it was desegregation that led to this, but Brown versus Board was 1954, and the SBC was still solidly liberal in 1972). Roe v. Wade lit everything on fire. (See RBG's comments on Roe V. Wade), precisely because it was a un-elected court making a change that no law could challenge.
It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
My hope on all of this is that this ends the imperial court - and abortion stops being the mother of all wedge issues, and allows some elements that moved to the right because of the undemocratic change to move back to the left now that the democratic norms are re-established.
> It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
There are of course two followup questions here:
1. Would the current supreme court allow a federal abortion law that codifies roe? The SC opinion explicitly notes that their ruling returns this to the states, but federal representatives are representatives too.
2. Does it really make sense for rights to be up to the whims of the legislature? If it takes 60 votes to pass a national abortion legalization, and 50 senate votes to repeal it, will we end up with lasting legislation, or just a de-facto ban because abortion is repealed every 2-4 years?
Regarding #2, the congress legislatively and the constitutional amendment process is truly the only place that makes sense to establish federal abortion rights. Frankly the amendment process is literally the best place because it’s the only way to establish enumerated rights.
Will it be hard? Extremely. Is it likely to fail before it’s done? Absolutely. But when it’s finally done, at whatever compromise, those rights will be enumerated and well established and it will take millions of people to take them away…instead of six people.
In the meantime we have states democratically choose their path.
1. Yes, they say as much in the opinion. (Take it for what it's worth). I think conservatives have not factored this into their plan.
2. I think at some point people will punish parties for that. Right now both parties could take absolutionist positions on abortion (late term versus outlawing for all reasons) because they didn't have the power to do anything because the USSC ruled on the issue. That made it a red meat promise to their supporters, without them ever having to really do anything about it..
Scalia described how to handle these cases very clearly. If the court overreached but there is broad consensus on the issue, it’s water under the bridge. If the issue is still controversial, it’s fair game. Nobody thinks we should revisit interracial marriage, and so under this interpretation it won’t be revisited.
The people in that video still exist in the county. They just have been overrun by professionals moving in as builders took advantage of abundant land and built houses over the last ten years.
It’s just not as acceptable to espouse those views in modern society. I’m sure some of the family members of the White girls my (step)son dates (the county is still only 3.8% Black) would not approve of their relative dating my son. Don’t get me wrong, by “relatives”, I mean grandparents, older relatives, etc. I’ve never sensed any hostility from parents. But that could be because they think we “are one of the good ones”
Which is of course odd since it flies directly in the face of Scalia's "originalism", and lays bare that the constitution is a living document. It also means that by the very act of objecting to the ruling, I am creating precedent to repeal, since I am "creating controversy".
The one that returns the decision to make policy on a controversial subject matter back to the people and their elected representatives, per the opinion of the Court?
The headlines aren’t entirely wrong. If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says. On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
In this particular case, the majority opinion starts off by quoting the relevant statute and analyzing its meaning, whereas the dissent starts off by saying (quoting) that “climate change is the most pressing environmental challenge of our time”, and continues with a long litany of how bad it is.
Really, I find the entire thing to be rather crazy: if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this. At the same time, the EPA’s argument in this case was that the Congress has already delegated this to EPA. Considering that the Congress won’t pass a law confirming that yes, it did in fact delegate authority to execute these particular regulations (which, again, would render the entire SCOTUS decision irrelevant), I find the EPA’s argument of rather dubious quality.
This term alone the "conservative majority opinions" have been downright contradictory on "relevant legal issues". Women now have a right to defend their life with a gun but cannot defend their life with healthcare.
It's clear that they are simply using "originalism" to cherry pick what falls in line with their personal opinions.
The Supreme Court stated that you could not apply handgun laws in a way that privileged one group over another. Historically, if you were black, no gun. White and knew the governor? Weapon up.
The supreme court's policies have been pretty straightforward if you read the constitution. The legislature has the responsibility to write the law. Not the supreme court (which is un-elected), not bureaucrats (who are un-elected) - without explicit law to make it possible.
The fact that everyone is screaming that an unelected bunch of mostly white folks are returning power to congress and telling them - no, be democratic - reveals a awful lot about the current state of the United States.
The supreme court didn't take away the ability to get abortions. It just moved jurisdiction to states instead of at the federal level because there is absolutely no mention of abortion in the Constitution, when there absolute is mention of guns in the Constitution.
The majority of states in the US will have the same abortion laws they have always had.
If there was a handheld contraption with a trigger that could fire a small nuclear projectile that could destroy an entire city would the right to have one be protected by the second amendment just because it fits the general definition of a gun?
It's not a game. The founders could not have foreseen the types of weapons that we quite arbitrarily consider to be 'guns' as described in the constitution, therefore if anyone is playing games it is the people who call themselves 'originalists' when they pretend that it is that philosophy that informs their judicial opinions.
> Women now have a right to defend their life with a gun but cannot defend their life with healthcare.
You are just illustrating my exact point. Right to keep and bear arms is explicitly secured in the Constitution that it “shall not be infringed”, whereas nothing of this sort is clearly and explicitly said about abortion rights. Here, again, conservatives focus on what the law actually says, and liberals focus on their preferred policy, and if their preferred policy is not to be clearly and explicitly found in the law, it is instead found in the “emanations of the penumbra”.
> Right to keep and bear arms is explicitly secured in the Constitution
An individual right to keep and bear arms was newly discovered in 2008, in a 5-4 decision. It took 220 years for a single vote majority to find evidence of it.
> it is instead found in the “emanations of the penumbra”
That's a funny way of describing the Ninth Amendment.
The pushback on the "individual right" thing is always so funny to me, because if you really believe that 2A was about membership in a "militia" then it's meaning is that the government can't disarm itself.
It's truly hilarious, given the context of when it was written.
> During colonial America, all able-bodied men of a certain age range were members of the militia, depending on each colony's rule. Individual towns formed local independent militias for their own defense.
Even today, there are organized, state-run militia (the National Guard) and unorganized, independent militia.
I think you're deliberately missing my point, which is that to take your position literally you have to think 2A was about making a rule to keep only a state-run organization armed right after they had just fought (and won) a war of independence using, among others, individuals and "unorganized, independent militia" and the weapons they personally owned. It truly strains credulity to think the Founders sat down and wrote with that intent. Plus, you can actually just go back and read what they wrote about their reasoning back then if you want. It's all in the public record. That it took the Court this long to actually have to say it is more a function of the deliberate gaslighting that's taken place in the 20th century to convince people this right never existed. Even in Dred Scott Chief Justice Taney noted that if African slaves were given citizenship they'd be allowed to "keep and carry arms wherever they want".
I think most people that actually follow the "it was about membership in the militia" interpretation really do believe that only the government should be allowed to have weapons. That's fine, and there's an argument to be made there, but I'd appreciate it if they just made that argument rather than rewriting history.
The entire second amendment here:
“ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Notice the first phrase.
Absolutely nothing here says “every Joe wacko can have military grade arms in case they want to overthrow the government “
Tell me it’s originalism to interpret the words above in any way other than what it reads as: a description of state militias.
If congress disagreed with this interpretation, they could pass a law explicitly ruling it out. The power of the supreme court in this regard relies on the fact that congress has great difficulty passing any law at all, and thus whatever interpretation given by the supreme court is likely to persist.
>If you look at the conservative majority opinions, you’ll find that indeed, it’s about the relevant legal issues, ie. what the law actually says.
The dissertation focuses on that. The actual reasoning might be based on something else. The court is strongly interested in projecting an image of being neutral, and of only going off of the wording of laws, rather than involving their own biases. Thus, the majority opinion should be read as an attempt to assign such a motive to their decision, whereas the dissenting opinions attempt to assign the opposite motive. That is, they attempt to suggest that the majority ruled this way because they are insufficiently worried about climate change.
In fact, it would be even worse than you say, because it would not be applied in a principled and consistent way. In actual practice, it would be default-allow if convenient, and default-forbid if not.
> No that would be correct. Congress delegated the power of they don't want to do that anymore they should take it away
No, they didn't. Congress delegating to the EPA (for instance) the power to regulate CFCs to save the ozone layer, does not also delegate the power to the EPA to regulate CO2 to solve global warming.
> The Administrator shall periodically review the list established by this subsection and publish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, but not including releases subject to regulation under subsection (r) of this section as a result of emissions to the air.
> [...] if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this.
At this stage in the climate crisis, we really need to be focused on direct results of political actions. The majority of the US population wants regulations to fight climate change, and the consensus among climate scientists is that if we don't aggressively cut carbon emissions immediately, things will get really out of hand. Therefore, if the Supreme Court is reducing the EPA's ability to help this, it is both anti-democratic and massively harmful to the public good. It really doesn't matter that the EPA is executive overreach according to some document written 230 years ago.
No, I strongly disagree. If elected representatives cannot agree on what is proper policy and pass it as law, I for one do not want some nameless bureaucrats be the ones calling the shots. Unelected bureaucrats creating policy as they wish, unconstrained by what the law actually says, is what actually is undemocratic.
Look, even as there might be general agreement among the people to fight climate change, there might be little to no agreement among the people as to how to actually proceed doing that. Because of this, you cannot say that blocking EPA here is undemocratic, because “ majority of the US population wants regulations to fight climate change”: it is very much untrue that majority of people want the exact policy that EPA tries to introduce, and have it be executed by EPA. It’s like saying that majority of US population want regulations to improve their commute times, so SCOTUS cannot block DoT from eminent-domaining land through cities and building 10 lane highways on it. Some people want that, sure, but others want more trains or zoning regulations to improve walkability, and there is no majority agreement here on the details of the policy. You certainly don’t want unelected bureaucrats with no accountability to voters be deciding major issues like that.
We are in such a desperate situation with the climate that we pretty much have to look at which of the two is most likely to enact policies that cut carbon emissions: is it the EPA, or Congress?
The current situation is not in any way desperate. All claims that a desperate crisis exists are based on the assumption of feedback loops that do not yet show up in any actual data and in fact many temperature datasets e.g. from satellites, weather balloons or the USA's own state of the art surface temperature network show virtually no warming at all for decades. To see warming you have to look at heavily modified composite datasets that are constantly being revised using methodologies so extreme that they literally create entirely new trends where the raw data doesn't contain any.
In an environment with as much epistemic uncertainty as climatology has, it is madness to allow bureaucrats to control anything at all. They are in no way fit to make important decisions on scientific topics.
Indeed, the reaction to this from lawmakers is really perplexing. They're claiming that the Court is "rogue" or something, but if you actually read what they wrote they are returning power from the executive to congress (or making it clear that Congress always had this power, not the executive). The reaction makes me think there are many lawmakers who are rather uninterested in making laws, and instead actually do want to see unelected Judges and executive bureaucrats implement their preferred policy options instead of doing the (hard) work of writing and passing those policies themselves.
The roe v Wade decision seemed to follow a similar pattern with the conservative opinion being about how there isn't really a basis for a constitutional right to an abortion up to viability (seems true) and the liberal dissenting opinion was about how the decision was going to be bad for women (also true) and how this opens up the floodgates to reversing a lot of other important supreme court decisions ( not sure how true that is)
I’m waiting for the first lawsuit against the DEA. What in the constitution gives the right for the Fedwral Government to regulate what we voluntarily put in our bodies or grow in our back yards?
> I’m waiting for the first lawsuit against the DEA. What in the constitution gives the right for the Fedwral Government to regulate what we voluntarily put in our bodies or grow in our back yards?
Yep. They can prevent growing your own wheat (in large quantity) because it impacts interstate wheat markets. You can literally bend this to apply to anything on that logic.
it feels kind of inconsistent. prior to roe being overturned the governments were able to regulate abortion to some extent. i assume some abortion medical procedures required a licensed doctor and i assume abortion medicine was regulated by the FDA. but at the same time the government was limited in how it could restrict abortion and this was justified by some privacy right which somehow didn't apply to the FDA regulation of abortion or medical licensing related to abortion. also, this same privacy right couldn't be invoked to allow you to take other medicines you might want. if you look at the arguments made in Roe v Wade I'm pretty sure you could claim you are taking recreational drugs as part of your marital sex routine and therefore this right to privacy should be extended to these drugs. i think if you honestly extended the general principal of roe v wade then a let of laws would be unconstitutional.
> Doesn’t work if it’s produced, distributed, and consumed entirely in a single state.
No, according to the Supreme Court, it's interstate commerce if a butterfly bats its wings and the resulting hurricane causes someone to buy a raincoat in another state.
IIRC, the actual case involved someone growing wheat their own land that they didn't even plan to sell. But since wheat was sold in interstate commerce, the court said any activity involving involving wheat could be regulated as interstate commerce.
> The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market.
I've had a similar thought process. We had an implicit right to privacy for abortion, but not for practically anything else (a couple other things, but some of them were also bizarre. Like how can you have privacy over who you marry if you're required to get a license before hand and they can still ban some classes/conditions but not others). If it is a right, it should apply universally. If not, then we need to start creating those rights in the constitution (where it requires larger agreement and isn't as easy to overturn). But maybe I'm crazy.
> We had an implicit right to privacy for abortion,
RBG didn't see it that way.
“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights."
Seriously curious. If I consume somthing, don't I now posses it (it's in my body) or didn't I have to posses it for at least a moment (in order to consume it)
I'm just curious in what ways this distinction would play out. I can see if "consuming" was illegal and "possession" was not logically works but it's harder to see how "consuming" is legal and "possession" is not doesn't effectively make "consuming" also illegal.
Devil's advocate: (I won't take on the atomic pile question since we're talking about consumables)
Operating a meth lab is dangerous _because_ it's illegal. If it were regulated and licensed, it would be no more dangerous than say operating an 18-wheel rig.
Is there a constitutional right to marry someone of another race? (Loving vs Virginia). Is there a constitutional right for gay people to get married (Obergefell vs Hodges)? Is there a constitutional right to buy contraceptive?
Guess which two of those Thomas wants to revisit and the one he probably doesn’t?
More specifically, the dissenting opinion argues that the right to abortion logically follows from all the prior rights granted to women, eg own property, voting, divorce.
It's my understanding it's argued the right to an abortion is given from the 14th amendment.
I didn't really see anything from the dissenting opinion about how the right to an abortion is given by women's right to voting, property or divorce (?).
How could they have been more explicit? From the dissent (emphasis mine):
JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting.
For half a century, Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.
...
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an un- safe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.
...
The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.
The argument is that the right to abortion follows from the 14th Amendment's guarantee that "liberty" is not deprived without due process. This is linked to other rights that were derived from the same clause, including contraception, cross-racial marriage, and same-sex intimacy and marriage. Some of the text you quoted also seems to hint at (but does not explicitly discuss) the other clauses of the 14th Amendment, the one about "privileges and immunities of citizens" and the one about "equal protection of the laws". Other parts you quoted are simply arguments for why abortion is part of "liberty".
Regarding your previous examples:
- Right to own property: In Kirchberg v. Feenstra, a law giving sole control of marital property to the husband was found unconstitutional under the Equal Protection Clause. So it's related to Roe v. Wade's Due Process argument, but not quite the same.
- Right to vote: This was explicitly granted by the 19th Amendment. Before that, the Supreme Court had ruled in Minor v. Happersett that the 14th Amendment's Privileges and Immunities Clause did not give women the right to vote, though one might imagine that the Roe court (or the Dobbs dissenters) would have disagreed (or would have found that right in a different part of the 14th Amendment).
- Right to divorce: I can't find any major Supreme Court cases trying to establish such a right. All fifty states allow for no-fault divorce, but that's grounded in state law and is only true as of 2010.
Maybe one positive (very long term) outcome of this food fight is the rediscovery of the 9th Amendment and less reliance on the Due Process clause.
That con argument that the right to an abortion is not in the Constitution baffles me. Um, exactly. The framers anticipated these kinds of circumstances. Hence the 9th Amendment.
It’s not a child or person until it’s born alive. Up until birth a fetus is a parasitic organism. If unwanted then the fetus is trespassing in the host body. If unwanted the parasite is robbing from the host. By these inconvertible truths if the fetus must be born then it must be tried for trespassing, battery, and theft and the counter party to conception must be held equally liable. Thus, the unwanted parasite must be terminated in order to preserve the rights of the host as plainly protected by the ninth, tenth, thirteenth and fourteenth amendments.
> It’s not a child or person until it’s born alive. Up until birth a fetus is a parasitic organism.
And many many many people disagree with that idea. Denying that people disagree with that distorts your picture of the matter.
So many on the left view this as some kind of patriarchal ruling, but in my experience it's conservative women who are more against abortion than conservative men.
Your lack of a response to the majority of my comment could be construed as you arguing in bad faith. The distortion here is of your own.
People are free to disagree with the personal choices free citizens make. People are not free to impose their beliefs on others and force them to carry or birth a parasite through coercion or force. Any conversation about forcing women to birth anything that does not include radical changes to:
healthcare, social safety net, the best parental leave laws in the world, wide carve outs for incest, rape, medical problems, birth defects, litter reduction, to name a few things
is a blatant exposition of the moral bankruptcy of the forced birthers seeking to impose their ideals on others through governmental violence. I haven’t met a forced birther yet that’s thought through all the complications of their grand scheme and come out the other side still a forced birther. Typically they just get mad and devolve into all sorts of fallacious statements, sometimes they storm off, and I’ve walked a few level headed people through enough of the realities of forced birth for them to autonomously realize that such laws cause so much suffering and cost so much in real economic and tax dollar terms that forced birth is regressive and will make the states it takes effect in worse places in all important measures like: infant mortality, student test scores, parental homicide, violent crime, etc— because the research on these topics is unanimous. Access to contraception whether condoms or third trimester abortions is an essential right to maintaining and strengthening a modern society. Anyone that doesn’t want to live in modern society is free to go build an island and reinvent the conservative turned libertarian ascent into liberalism wheel.
You really should check your ideological emotions at the door if you want to be taken seriously. I have no alternative but to accept your concession that parasite is a valid term for an unwanted pregnancy and that your dissenting arguments lack intellectual rigor. If they had any you’d have used them instead of dismissing me for imaginary reasons that only make sense to someone that adheres to a regressive belief system that’s perverted older belief systems from multiple millennia ago that considers unborn fetuses of incestual rape by religious leaders to be sacrosanct. To be clear, the only significant groups opposing abortion are Christian by filling or membership percentiles.:1
The fact that you can’t appreciate a minuscule difference in terminology, and the pointed intent, is all I need to know that you wouldn’t be arguing in good faith. demanding anyone name parasites children is nothing more than a limp wristed attempt at controlling the language used for the discussion as a propagandistic method to be used after a technical (read: pedantic on the level of grade 6 debate club) victory or worse, a legal win due to the erosion of the church state divide which is a flagrant violation of the constitution. I am guaranteed my right to abort as many parasites as I want by my adherence to Satanism as you must bring to term despite crippling defects due to incestuous rape due to your obviously strict adherence to your religion that considers unviable parasites a child. So please tell me about how America cares for children with severe birth defects sacrificed to the care of the state are cared for and how the regressive religions against abortion get the funding to guarantee every abandoned child a life equivalent to the American median. I’ll wait longer than I should because these statistics are impossible to provide because the GOP stops legislating for parasite rights as soon as they’re birthed. I’m also waiting for these organizations to give up their tax exempt status due to their flagrant political meddling.
Those words in the dissent would work as a nice template for a human right:
The government could not control a human’s body or the course of a human’s life: It could not determine what the human’s future would be. Respecting a human as an autonomous being, and granting them full equality, meant giving them substantial choice over their most personal and most consequential of all life decisions.
It is very clear from the text that the decision to have a child is more than just the pregnancy or the birth. It is also about the life-transforming consequences, the childcare and the time and money to raise a child. It is about the social impact and the lives that such choice impact.
All those belong in a human right where willing consent of parenthood should be in focus.
Yes and: The pedantic nature of our adversarial system really bothers me. The focus on very narrow circumstances and edge cases. It prevents reaching reasonable outcomes.
There are always dilemmas and paradoxes. The proper job of the Court is to find the middle path. Consider the whole system and strike a balance. Arbitrate an acceptable consensus.
And that requires mitigating a decision's downsides.
That was the approach of the German Courts. In addition to proscribing the rules around abortion, they also put into place structures to reduce the need for abortions, improving the health and well being of all women and children.
> On the other hand, if you read liberal dissents, they’re mostly about what they think appropriate policy should be.
The Supreme Court is not supposed to set policy. It's only supposed to rule on if the policy set by others (Congress) is constitutional or not.
If the EPA could do anthing to stop emmisions, banning power plants from existing at all would satisfy "do anything to stop emmisions", so would "depopulating the planet" (no people, no need for power plants). Those seems like they make it pretty clear they need specific limits. They were given specific limits. The court confirmed that.
Congress needs to increase what they're allowed to regulate and how if they want more power. It's frustrating that that's so hard to come by but it's hard to imagine how else it could be
> if the Congress wants EPA to regulate emissions the way they tried to do, all it needs to do is to pass a law explicitly instructing it to do so. Of course, it won’t, because there is no political will in Congress to pass this.
This doesn't accurately represent the present situation on this or really any topic. It makes is sound like members of Congress simply don't care. Unless the filibuster is removed or reformed, a party wishing to legislate on any controversial issue needs a super majority in the Senate to pass the legislation just in that chamber of Congress. They also need control of the House and the presidency. There is plenty of political will in the Democratic caucus to pass this legislation, but due to gerrymandering in the House and the inherently unrepresentative nature of the Senate they cannot get enough votes to pass legislation, however much they may wish to, on the rare occasions the stars align and they have control over both the executive and legislative branches. The Republicans need control over only one of these three choke points to stop legislation. And now that they have a generation of control over the Supreme Court, and the Court has demonstrated that they regard legal argument as post facto justification for political decisions, the Democrats are well and truly screwed. There may be some Republicans who secretly would like to do something about any one of the major catastrophes facing the nation and the world, and some may claim this in public, but because their co-partisans are making total political war on non-conservatives at the moment they can't actually do anything or they face the mob.
Basically, "political will" isn't the issue. It's our crappily designed "democracy" mixed with total political war, strident propaganda, and millennialists who are happy to let the world go to hell because they think they're going to heaven.
In my mind all this means that things are working as intended. The Constitution was set up to limit what the federal government can do, and the Congress (particularly the senate) was set up to make it hard to do things that did not have significant support over and above a simple majority.
FDR set up a bureaucratic state to try to get around this, but it’s not what the constitution envisioned.
I for one am happy that unelected bureaucrats (who the voters have no way to get rid of) now have less power, and that politicians who can be held accountable now have to act explicitly to make big changes. Again, working as designed.
> I for one am happy that unelected bureaucrats (who the voters have no way to get rid of) now have less power, and that politicians who can be held accountable now have to act explicitly to make big changes. Again, working as designed.
Politicians are held accountable for not doing things as well. In our current system whoever is in power is held accountable, even if they didn't do anything because they were blocked by our byzantine form of government. But the politicians who should be held accountable are the ones who blocked it. Do you view this as a good system?
Consider a scenario:
President Bob and the Do Something party are in power. They really, really, really want to do something. Everyone is yelling at them to do something! Something must be done! But the Do Nothing party uses some procedural mechanism, or their control of the cloak room, or the secret password written on the back of the Constitution, to keep anything from happening. The public doesn't understand the system, because few people do; all they see is that NOTHING IS GETTING DONE. The Do Nothing party is quite pleased to stick all the blame on the Do Something party. They don't enlighten the voters. Even while they block any action they go on TV and solemnly intone about the fecklessness of the Do Something party. They said they would do something! Look what they do when in power! So feckless! So the voters punish the Do Something party at the polls.
This is more or less how our system of government works.
Sometimes something needs to be done. But we can't do anything!*
* Footnote: this isn't strictly true. The Do Something party will cooperate with the Do Nothing party on those rare occasions when the Do Nothingers actually want to do something. The Do Nothing party will not reciprocate.
Nice rant, however you are ignoring the dissenting opinion above, and your comfortable tone indicates satisfaction with the status quo, which generally never needed more support, and brands you as one who would side with power everytime. I wouldn’t trust you in my organization.
Congress wouldn't ratify 99% of court decisions even when the text of their bill is very clear l. The argument you make in the last sentence of your post is very weak.
This case could have been decided either way. The result clearly depends on the makeup of the Court and the justices' personal inclinations. As evidence: a very similar question was decided by the Court in 2009, with a completely different result [1].
This doesn't make OP's point less true: the headlines surrounding this decision are misleading. This is not judicial overreach, it's an application of a different theory of judicial review than we've become accustomed to, and it's not necessarily a bad one.
If we don't like it when the police creatively interpret laws to target minorities, can we allow the EPA the authority to creatively interpret laws to target fossil fuel companies? Is it possible to give the executive authorities the power to be creative, but only in the service of a good cause? This Supreme Court believes it's not, and that seems like a reasonable position to take.
A court that is unconstrained by precedent can arrive at any policy outcome it wants: simply tailor a "novel" legal theory that gives you the desired result, then ignore past decisions that use different theories. Past Courts have worked extremely hard to avoid this: they viewed it as fatal to the legitimacy of the Court. They were right.
But that’s exactly what the Roe v Wade decision was - decide what policy you want, then have the court come up with an argument as to why that right exists.
It’s not supposed to work that way. The legislature makes laws, the court interprets under the framework of the Constitution.
Precedent is important, but it’s not supposed to create law out of thin air. It’s supposed to be based on a firm set of decisions that flow from the Constitution and law.
Here's the thing: some of us start from the point of view that the Constitution might be bad. I know it's sacrilegious. But from there, all sorts of rulings seem like improvements on a baroque 18th century piece of paper. If you DO uphold the Constitution as being "the greatest legal document ever made" (faith-based view) then yeah all these conservative SCOTUS put-downs seem logical to restoring the US source code. It's just a piece of paper though being stretched to apply to situations unimaginable to their originators and badly need of updates.
The constitution may be bad. We've had a number of amendments, most of which improved in in very critical ways.
The point is that we should live under legislation that is agreed upon via democratic means. Congress has pretty broad powers to create laws. Where those powers are circumscribed, such as with gun control, we have prescribed mechanisms for amending the constitution and making it less bad.
I'm highly critical of the court legislating from the bench, whichever direction it does it from. I'm _extremely_ frustrated and dismayed that our legislative branch punts so many contentious issues to the courts. If the court is now less willing to play that game, maybe we'll go back to deciding things in the legislature, where we can have a debate that is values-based, and not just based on the reading of a baroque 18th century document.
For what it's worth, I favor broad government action to address climate change and excessive CO2 emissions, but it's going to be better for everyone if there's some horse-trading here and we get some broad buy-in instead of having it be imposed by unelected government appointees that are not operating under a broad mandate.
If we can't get broad buy-in, I guess that means we can't deal with climate change democratically. Maybe then one wants to advocate for non-democratic measures, but then we should just be honest about that.
It's exactly this kind of attitude that the Constitution was designed as it was. Too many people are willing to circumvent normal legislative actions because "we're doing the right thing". What they end up forgetting is if they can do it, so can their opponents. "Those who are willing to give up freedom in exchange for <x> deserve neither.
The Founding Fathers seems smarter and smarter the more you dig into it.
Can you cite some materials to back up your claims?
Besides the latest Roe V Wade decision deviating from two previous decisions which were decided by larger majorities, it also cites ideas based in “originalism” or constitutional fundamentalism which don’t even make sense. They argued there is “no general right to privacy” outlined in the constitution, which clashes greatly with any reasonable reading of the 4th amendment.
So please, do explain how the 4th amendment doesn’t grant any right to general privacy, and how this current highly political court is somehow actually being more legally objective than the previous two which created and upheld decisively the ruling which is also generally agreed to align with reasonable moral stances
"A different theory of legal review" which here means coming to a predetermined policy decision, and then inventing legal justification for it, no matter how flimsy.
I've had plenty of educated, well-informed individuals make exactly the same legal arguments to me for decades. Whether or not I agree with the reasoning, it's not hard for me to believe that the Supreme Court justices believed the principles they're following long before they arrived at this decision.
You can disagree with the legal justification, but that you disagree is not evidence that it was invented to achieve a specific goal.
Thomas is carrying out a personal and vindictive agenda without regard to the harm caused to hundreds of millions of people. He’s neither principled nor objective. Kavanaughs an angry drunk coasting off connections, wealth, and privilege. Barrett’s a perjured radical theologist trying to legislate handmaids tale into reality from the bench.
> This is not judicial overreach, it's an application of a different theory of judicial review than we've become accustomed to, and it's not necessarily a bad one.
Originalism is as bad in jurisprudence as orthodoxy is in religions. It is extremely dangerous to act like there haven't been hundreds of years of civilizatory development in all areas since the scriptures were written. Originalism/orthodoxy/fundamentalism, especially one that doesn't take contemporary issues of the text's origin into mind, always is bad.
Add on top that the judicial picks of the 45th were carefully selected for their attitudes and the GQP ignored a boatload of red flags for every single one candidate, and now it's not just "application of a different theory", it's a full-blown takeover.
> Originalism is as bad in jurisprudence as orthodoxy is in religions.
There's nothing stopping you from rewriting the laws. Religions don't work that way.
Although, the US constitution is almost a religious text the way it's treated as almost sacred. Why does anyone still care what the founders intended? They're not prophets...
> Why does anyone still care what the founders intended? They're not prophets…
As a foreigner whose country changed constitutions a good dozen of times since the USA passed its own and amends it more or less yearly, this used to baffle me. My take is that there is so little that units American together nowadays that they cling strongly to every anchor they can find.
> Originalism is as bad in jurisprudence as orthodoxy is in religions. It is extremely dangerous to act like there haven't been hundreds of years of civilizatory development in all areas since the scriptures were written. Originalism/orthodoxy/fundamentalism, especially one that doesn't take contemporary issues of the text's origin into mind, always is bad.
No it isn't. Your analogy doesn't really work because religious scriptures can't usually be amended (within the context of a single religion), while there are well-defined mechanisms for amending and updating law (e.g. what legislatures do all day). Basically: update the text itself with the needed changes, not the interpretation.
There are serious problems with using interpretation to update law: it makes the text ambiguous, because who knows how some loosely-constrained judge(s) will decide to "update" it in the future, and it's anti-democratic because it bypasses the democratic political bodies who's actual job it is to actually make the updates.
The problem with US constitutional law right now is that a lot of people want certain things to be "constitutional" when there's no actual consensus for doing so (a consensus isn't 50% + 1, it's "pretty much everyone agrees").
Actual originalism is impossible, even if you isolated yourself from social cults seeking to cultivate corrupt judges like the federalist society.
All humans have inherent biases and lenses and perspectives. Do jury duty sometime. Actual factual recollections vary in details and even factual accuracy
In an absolutely pure form? Sure, but that's true of most good things (e.g. justice). That doesn't mean the concept is bad or that shouldn't be pursued to the greatest degree possible, especially when the alternative is to have someone interpret the law like Humpty Dumpty when it suits them (https://www.fecundity.com/pmagnus/humpty.html).
> If we don't like it when the police creatively interpret laws to target minorities, can we allow the EPA the authority to creatively interpret laws to target fossil fuel companies?
We can under the legal theory "What I want goes; what I don't want, no."
> The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem.
But it's not a major new problem. The Congress that established the EPA granted the "stretching" along with it, otherwise it would take an act of Congress to determine the color of the Post-its.
The new rulings are farcical zealotry. Apparently, the only people capable of making decisions died 100 years ago and anything we've learned after the Civil War doesn't matter.
Sure, whatever. These guys are great at espousing some high minded principle that happens to fit into whatever the desired outcome happens to be.
These reactionaries represent the dead hand of a generation of people who control or seek to control to guide society to meet their own generational/dynastic wealth and power goals.
I’m sure you’ll feel differently as the assaults on the 14th amendment continue and things like the right to privacy are whittled down to a nub.
If recent SCOTUS decisions are a dead generation reaching out of the grave to get their way in the end against the united consensus of the living, then the living should have no trouble sorting Congress out and getting the right laws and amendments passed the proper way.
Of course, the truth is that living generations are not nearly so united against this as you seem to be suggesting. There certainly isn't enough consensus to pass any amendments. It's not really the dead hand of a bygone generation doing this, it's people who are still very much alive and relevant who disagree with you.
The whole concept of a corporate fourth estate informing a populace how to vote contrary to their own interests is surely a major problem our founders weren’t considering very heavily, given the media of the time.
I can’t imagine the World War generations silently watching Tucker give aid and comfort to Putin either…
I can see how corporate influence might play a role in this EPA decision, but most of the ire being thrown at SCOTUS recently is about abortion and I don't see any clear corporate pro-life consensus. On the contrary, I expect most corporations want to keep abortion legal to protect their workforce.
> I can’t imagine the World War generations silently watching Tucker give aid and comfort to Putin either…
Yes, the world war generations had trouble with the principle of free speech; for instance, arresting people for protesting the draft during the first world war: https://en.wikipedia.org/wiki/Schenck_v._United_States And do I need to remind you of the mass internment of Japanese Americans, convicted of no crimes, during the second world war?
I like to think we've made some progress since then.
Ah yes, this is all perfectly above board. It just so happens that after a huge amount of horse shit by the republican party to appoint certain specific justices, there are immediately perfect test cases to put everything exactly the way they want it.
No. This was planned, planned very in advance, planned in the open. The republican party has openly wanted to do this for decades, put a plan in motion and executed very well. It is obvious that these justices are completely beholden to the republican party, and should be seen as such. We can play all the dumb semantics games we want, but none of that changes that the Supreme court is part of the US government, that their decisions have broad consequences, and that those consequences are obvious.
If you do "the right thing" and it leads to millions of people oppressed when "the wrong thing, or nothing at all" would have led to zero suffering, did you really do the right thing?
That's the strategy of the Federalist Society, make rulings via the undemocratic SCOTUS under the guise of giving states/congress power, but then also making sure that state elections are undemocratic via gerrymandering, voting laws, etc.
It doesn't help that taking action on matters of national importance is inherently difficult in a Federalist government.
from Wikipedia '... The Federalist Society provides its 70,000 members with "intellectual sparring and professional grooming.'
without taking sides on this attorney gang, it seems to be like a bunch of professional boxers and others here are mad because they cannot fight. I do not want to fight lawyers, but calling them a conspiracy, when they specifically engage and practice debate professionally, is sort of pathetic honestly.
I grew up going to FedSoc. officially, it's just a debate society - the panels are streamed on CSPAN, it's all public. unofficially, it's a Mecca of networking for conservative lawyers. the upper echelons are nearly exclusively Catholics, and the founder provided Trump with shortlists of Justices he could pick from. and all that networking made it happen. it's no coincidence all the recent nominees are Catholic.
Well there was once a Congress that passed the Missouri Compromise which institutionalized hyper-partisanship and another that was so ineffective its successor Congress literally fell apart when several States seceded from the Union and those States then went to War with the Union.
So, cut the hyperbole. Partisanship has always been a political reality. The EPA is capped to the powers that Congress gave it, and does not have the autonomy to expand that power at will because they’re subordinate to the President and the President cannot unilaterally and legally make laws on his own, nor can any of the agencies which answer to him.
I fear what a lot of what outspoken "progressive" types (and yes, before anyone asks, also the MAGA crowd) want is a CCP-style political system as long as they're the ones in control. Concepts like separation of powers and rule of law are merely obstacles to smash through on their road to utopia.
Correct. Which is why both of those groups you listed along with many others need to continue to lose elections and fail to attain power because the endgame for them is eliminating the possibility that they ever lose an election again. Like the CCP has.
Few progressives want sprawling bureaucracy. Rather, that’s typically what we get out of social safety nets due to conservative sabotaging of the process and text.
Sprawling bureaucracy is a byproduct of what you get from investing the government with additional functions. Every office you open whether Civil Rights or Agriculture or Patent Office needs staff. If we had a single payer system, there would necessarily be an enormous bureaucracy attached to it, most likely an expansion of the existing Medicare/Medicaid bureaucracy.
You just don’t get one without the other, even if you cut the staff down to the bare minimum that can still efficiently manage government programs you still end up with a sprawling bureaucracy.
There’s a difference between sprawling bureaucracy and necessary bureaucracy. Are you really suggesting that all bureaucracy is inherently bad and defaults to wasteful sprawl?
Are you saying a “necessary” bureaucracy is necessarily not a sprawling bureaucracy?
In any case, if the function invested in the government is a misapplication of public money then the bureaucracy servicing it would also necessarily be unnecessary. If the function is necessary, that does not mean the bureaucracy servicing it isn’t sprawling. The military has what could be termed sprawl, but that’s a function of the broad scope of its missions and global reach.
Correction: it would replace multiple competing staffs (“bureaucracies”) of private insurers with the ability to take losses and go out of business with one bureaucracy with a chain of command spearheaded by the POTUS backed by the full faith and credit of the United States. My example was not an invitation to discuss the merits and demerits of single payer healthcare in a different topic, but to point out that for every function you invest the Federal government with, you get a corresponding bureaucracy ultimately subordinate to basically one guy. Doesn’t matter what the function is, you’re expanding his staff.
And yet, fixing that problem -- the problem of the ineffectiveness and hyper-partisanship of Congress -- would have so many positive effects for all of our lives regardless of our ideological perspectives that it should be our number one priority as the electorate.
The ineffectiveness and hyperpartisanship of Congress is directly attributable to the ideological perspectives of the electorate.
Also, Congress is not as ineffective and hyperpartisan as you think. It's only on issues that have public attention that they act this way. When nobody is looking they move quickly and decisively.
Eliminating partisan gerrymandering would go a long way.
Less than 10% of congressional districts this year will be competitive (defined as the most recent presidential election margin was within 10 percentage points). Only 41 seats!
I haven’t really seen a realistic plan to do it though.
OTOH, results of elections to congress (house of representatives) looks balanced - total seats gained by each party matches popular vote with deviation < 1%. Which is much better than i expected considering single-seat system leads to advantages for dominant players even without gerrymandering.
Even in my home country, which is european country with proportional system and no gerrymandering, such deviation is higher (< 2%) due to rounding effects.
Gerrymandering is main issue in (some) state elections (e.g. Wisconsin 2018 is egregious example), not federal elections.
The totals are a little misleading because there is partisan gerrymandering on both sides, so they somewhat balance each other out. Courts have also been highly involved in rejecting the most brazenly disproportionate maps, but that may soon change next year due to the newly constituted Supreme Court.
The bigger problem is that it incentivizes partisanship and extremist views in uncompetitive districts because the representative is effectively decided in the party’s primary election, not the general election which has higher turnout and a more representative electorate.
Also the fact that 90%+ of congressional seats are safe except for the occasional primary opponent discourages accountability. Our districts are so distorted, they make no geographic sense. And it means a large percentage of our population is permanently disenfranchised, which dampens voter participation. It really is one of the biggest structural problems of our democracy right now.
Do you have a source for that claim? I find it hard to believe that partisan conduct didn't exist on the hot topics of the day throughout history.
For example, it took years to create a constitution, then more years for a bill of rights. There was a lot of federalist vs anti-federalist debate. Then things like slavery, segregation, etc. I mean, we fought a civil war. How much more partisan can it get than that?
Perhaps there is a hyper-partisan congress because it’s a reaction to what some have viewed as a hyper-partisan Supreme Court.
On a positive reading, the Court is now saying states have the right to choose these issues for themselves. There are means in the constitution for overruling a minority of states, that is by passing a constitutional amendment. By allowing and even encouraging the Court to make these decisions, Congress has built up a democratic deficit which has exploded in its face.
On a negative reading, sadly, the Court is just as partisan now but in the other direction. Thus the deficit won’t go away.
The previous court was conservative on a linear scale. The current court is radically conservative with fascist imperialist theological trends becoming more apparent by the day.
Read the dissent and see if you don't find it equally convincing. Supreme Court justices are very smart and very good at their jobs and it's not surprising that pretty much everything they write sounds reasonable and well-argued.
Key quote from the dissent:
> Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution”
and that “may reasonably be anticipated to endanger public health or welfare.”
So, does CO2 qualify, or is it a "major new problem"? Sounds like a policy issue to me.
If they had convincing scientific evidence that marijuana both contributes significantly to air pollution and endangers public health, yes I would be.
Edit: Actually I think the particular Clean Air Act section in question only covers buildings or other "stationary sources", so I don't think marijuana would qualify unless a building was emitting marijuana smoke.
Why? This authority was intentionally granted by a democratic legislature. If it's too broad, the act can be amended. The "technocrats" are only in control of what we have voted to let them control. The text is pretty straightforward:
> The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.
That is explicitly delegating these decisions to the judgement of the EPA Administrator. This is extremely normal, every government agency works like this.
Not really. The court's conclusion is that Congress didn't anticipate such significant consequences when they granted this authority, so the EPA has to wait for Congress to confirm they're ok with it. They're saying that yes the EPA has this power on paper, but "a decision of such magnitude and consequence rests with Congress itself", so surely they didn't actually mean to do that. Maybe they made a mistake, we have to ask again to be sure.
Maybe they did make a mistake, but if so they can fix it. I think what the court majority is saying here is patronizing and wrong. There's a perfectly normal process for Congress to amend a law if it accidentally gave up too much power.
On one hand you have democratically elected representatives (less democratic than a direct democracy, but still reasonably democratic) delegating power to the executive branch (who's lead is elected by the electoral college, which is substantially less democratic than direct democracy.) Stack the two of these together and the end result is less democratic than either considered in isolation. But you want to go a step further and empower unelected technocracts in the executive branch to ban harmless herbs if they claim they have "convincing scientific evidence" that marijuana is harmful. And I guess that isn't even enough for you; presumably you also object to the judicial checking the power of those technocrats.
I prefer that matters like this be handled in an actually democratic way. Cannabis was legalized in my state because I and others in my state voted to make it so. That's democracy. Technocracts making unimpeachable "scientific" decisions isn't democracy, it's a faint shadow of democracy. Referendums are democracy, and are the democratic way to resolve these sort of social disputes.
Why is passing a marijuana legalization bill democratic, but passing the Clean Air Act is not? I guess I am still not understanding the core of your argument.
When your state legalized marijuana, it delegated a ton of decisions to unelected officials - individual business licensing, labeling details, dispensary sanitation standards, valid medical applications, etc. There is probably a whole commission of unelected people who go through a formal rulemaking process which involves collecting feedback from people like you, just like the EPA.
It's ok if you don't like this model, but you can't claim it's not what Congress intended and not a normal state of affairs at the moment. It's just how the country works, we don't have Congress vote on every single pollutant, medical device, potential drug, import/export restriction, endangered species, etc.
> This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.).
Dissenting opinion quotes the following, which to me (and at least one supreme court judge) does not seem to limit this power:
> “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated.” §7411(a)(1).
> Headlines about Supreme Court cases are almost uniformly misleading, because they suggest the Court is making decisions on policy issues rather than legal issues.
I agree with this completely, but it doesn't help when justices begin their opinion / concurrence / dissent with a long policy discussion before talking about the legal questions. That's been the case in several of the recent decisions.
You don’t get say civil asset forfeiture from simply reading the constitution and ruling based on it.
Cases make it to the Supreme Court because the outcome is ambiguous, so the court can’t actually make decisions based on an objective standard. It’s simply not how they operate in this or any other court.
Instead the outcome is decided and various legal justifications are provided by both the justices who agree and those who disagree. You can agree or disagree with the outcome of any case, but there’s a reason the appointment of Supreme Court justices is considered so politically important, it’s a political job.
even Scalia thought Thomas was a kook for inventing the "major questions doctrine." where in the Constitution can you find this? separation of powers, apparently, if you're looking through a seer stone in a hat at some golden tablets.
the majority invented the doctrine to neuter Federal agencies.
That is because that's what they do. The supreme court is a political organ making very conservative political decisions. Much of the time the sort of headlines you seem to prefer would be navel gazing that's not important to most people and would be misleading distract from the real world result that it's gutting much of the EPAs powers? Why because conservatives don't like the EPA. I applaud the headline for getting at the truth of the matter
The very first words of the opinion, on p. 2, make clear that the legal issue before the Court is very different: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
The Clean Air Act does not purport to give the EPA blanket regulatory authority over anything involving emissions into the air. It has detailed provisions focused on reducing the amount of toxic pollutants, in particular through the use of control (scrubbing) technologies. This case concerns whether the EPA can use its power to impose control technologies on power plants, to force the industry to use a particular mix of power generation sources (solar, gas, etc.). The Court decided that the statute did not confer on the EPA the power to do that. The relevant discussion begins on page 16.
This decision gives legs to something that has been called the "major questions doctrine." The gist of that doctrine is that an agency can't stretch some pre-existing grant of Congressional authority to create sweeping regulations addressing a major new problem. As applied here, that means that the EPA can't rely on authority delegated by Congress to, for example, tell coal plants what kind of scrubbers they have to use, to tackle climate change. pp. 17-19.