Miscellaneous And Off Topic Subjects

[iam416]

Charles Cooke has been a roll lately -- well, for a long time -- but this one is just a joy to read: https://www.nationalreview.com/2022/...our-democracy/

[Jeff Buchanan]

talent .... the NRO/Cooke piece is paywalled.

I thought this was a cool picture. It's a picture of the yacht Amadea that was owned by Russian Oligarch and Putin confident Suleman Kerimov. It was seized in Fiji at the request of the US Treasury Department and just arrived in Hawaii. Love the flag!

Amadea.JPG

[iam416]

This morning, six unelected judges on the Supreme Court struck a fatal blow against Our Democracy™. In the case of West Virginia v. E.P.A., the Court rejected the expansive authority of the nimble, responsive, and representative Environmental Protection Agency, and insisted that, under the American system of government, federal laws must be made by the elected lawmakers of the United States Congress. From Heav’n, James Madison must surely have wept.

The majority’s opinion was predicated upon a loophole within the U.S. Constitution called “Article I,” which, among other things, reads that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” This provision, the Court reasoned, can be reasonably construed to preclude the executive branch from doing whatever it wants, whenever it wants, without underlying statutory approval. Because “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps,” the majority concluded, the EPA is not permitted to “devise emissions caps.” This, I need not point out, is precisely the sort of too-clever-by-half sophistry that gives professional lawyers a bad name.

“The question before us,” Chief Justice Roberts confirmed early on in his opinion, “is whether [the EPA’s] broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.” And, over 31 highly un-democratic pages, Roberts decided that it was not. As one might expect, his opinion relied heavily on technicalities, such as the facts that nobody had claimed until recently that the Clean Air Act meant what the EPA now says it means; that Congress had declined to give the EPA the power in question on multiple occasions; that “under the major questions doctrine,” the Court needs to see “clear congressional authorization,” and such authorization doesn’t exist in this case; that the EPA’s interpretation would represent a “fundamental revision of the statute”; and that “there is little reason to think Congress assigned such decisions to the Agency.”

Most distressing of all, Roberts steadfastly declined to apply the U.S. Constitution’s crucial “But What If Congress Is Stupid?” clause. “Members of Congress,” Justice Kagan noted in her dissent, “often don’t know enough—and know they don’t know enough—to regulate sensibly on an issue.” And, as we all know, when judges believe that lawmakers are stupid, democracy requires that they hand those lawmakers’ powers over to bureaucrats within the executive branch as soon as possible. By pigheadedly refusing to acquiesce to the EPA’s ambitions, the Supreme Court has made a mockery of its role as a neutral arbiter of the law and rendered itself even more un-democratic than it was when it returned the abortion question to the voters last Friday.

A bitter hostility toward self-government simmered throughout both Justice Roberts’s majority opinion and Justice Gorsuch’s concurrence. “A decision of such magnitude and consequence,” Roberts suggested, “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” “Administrative agencies,” Justice Gorsuch insisted, “must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’” “By vesting the lawmaking power in the people’s elected representatives,” Gorsuch concluded, “the Constitution sought to ensure ‘not only that all power [w]ould be derived from the people,’ but also ‘that those [e]ntrusted with it should be kept in dependence on the people.’” Not since the days of General Pinochet have we heard such brazen anti-democratic language as this.

Dissenting mightily, Justice Kagan tried her best to overcome the onslaught. Beginning her rejoinder with the Constitution’s oft-ignored “But It’s Really Bad” clause, Kagan drilled down on the key legal questions from the outset. “Climate change’s causes and dangers,” she noted on page one, “are no longer subject to serious doubt.” “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.” Having set the stakes, Kagan then ran through a series of important canonical approaches, before deftly concluding that, when it insists that the executive branch exercise only those powers that Congress has accorded to it, “the Court appoints itself—instead of Congress or the expert agency—the decision maker.”

In Washington, D.C., America’s elected lawmakers were understandably apoplectic. By returning power to the legislature, Senator Warren complained, the Court had “destroyed the federal government’s ability to fight back” against the problems she has identified without explicit congressional authorization. On Twitter, meanwhile, Senate majority leader Schumer neatly underscored the problem that the Court’s “extremist justices” had caused. Now that the executive branch had been confined to its statutory powers, Schumer explained, those who wish to “fight the climate crisis” in ways that are not currently permitted by federal law will have to “pass meaningful legislation” to that end.

How will Our Democracy™ survive such an unprecedented assault?

[Jeff Buchanan]

Talent, you frequently quip ...."can't make this shit up." The dissenting opinion (Justice Kagan) and the D's (Warren, Schumer and undoubtedly numerous other Ds not mentioned) that he pillories in his article said shit in response to the court's EPA ruling that just can't be made up.

Great piece. It's only chuckles worth though because I just get furious being reminded what dip-shits, completely uninformed of the basics of the US Constitution, the left is comprised of. Scary shit that these fuckers have a legislative majority and thankful as hell that bulwarks against their stupidity, like, you know, the courts that interpret the law and Manchin and Sinema.

BTW, those two just told Biden to pound sand, we're not eliminating the filibuster so you can take back federal control of the question of abortion.

[lineygoblue]

If China, Russia, India, and most of SE Asia don't address 'climate change' then it doesn't matter at all what the US does.

[Obi-Jon]

Sad but true.

[iam416]

If China, Russia, India, and most of SE Asia don't address 'climate change' then it doesn't matter at all what the US does.

China is at 30% or more of global CO2 emissions. And building more coal power plants. They have zero interest in reducing emissions.

The mark the UN says we have to hit is 50% reduction by 2030. Or, you know, disaster.

With China completely out, that means we have to get 50% reduction from 70%. Probably less. That’s now effectively 72%.

The US, I think, I’d around 12-13%. If the US went to zero by 2030 then the rest of the non-China world would need to reduce their emissions by about 63%.

So, if the 2030 deadline is actually real — and not another UN deadline that gets kicked another 10 years —then there’s absolutely zero chance we’ll hit it.

The US has been reducing emissions for years, too.

[Dr. Strangelove]

Sounds like if Congress simply writes a bill granting the EPA all the powers they tried to assert through executive fiat, we can be sure the Supreme Court will vote 9-0 that it's constitutional!!!

[Dr. Strangelove]

[Da Geezer]

The article Talent posted says:

Dissenting mightily, Justice Kagan tried her best to overcome the onslaught. Beginning her rejoinder with the Constitution’s oft-ignored “But It’s Really Bad” clause, Kagan drilled down on the key legal questions from the outset. “Climate change’s causes and dangers,” she noted on page one, “are no longer subject to serious doubt.” “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.” Having set the stakes, Kagan then ran through a series of important canonical approaches, before deftly concluding that, when it insists that the executive branch exercise only those powers that Congress has accorded to it, “the Court appoints itself—instead of Congress or the expert agency—the decision maker.”

It is all about climate change, isn't it? If the models are wrong, this whole reordering of the world's economy may be entirely wasted.

We seem to have great admiration for China's scientific community. China doesn't think CC is a huge threat. Has anyone ever read "why" China is uninterested in CO2 mitigation?

Another good read would be The Population Bomb by Paul Urlich from the late 60s. It predicted the earth running out of resources and there being mass starvation by the year 2000. I believe it greatly influenced the SC to institute abortion policy in the Roe decision. China made its one-child policy. None of this was necessary, but failed models were used as the "scientific" reason for massively wrong-headed policy decisions.

[iam416]

Sounds like if Congress simply writes a bill granting the EPA all the powers they tried to assert through executive fiat, we can be sure the Supreme Court will vote 9-0 that it's constitutional!!!

That’s the way it works. Assuming Congress has authority to address the issue. But, yeah, that’s the way it works. Well, SHOULD work. We’re finally getting back to, you know, respecting Article I

[Dr. Strangelove]

You and I have philosophical differences over a judge's role that I think we're both aware of but I'm curious, if you could name a downside to textualism, what would it be?

[THE_WIZARD_]

STFU Vladimir DSL

[iam416]

You and I have philosophical differences over a judge's role that I think we're both aware of but I'm curious, if you could name a downside to textualism, what would it be?

There’s no downside to textualism. There are arguments against originalism.

But, textualism has won. I could go into the history of it, but the bottom line is that every judge starts and ends with text in a statutory dispute.

The “Major Question Doctrine” is what decided this TEXTUALISM argument. The dissent argued the statutory language could be construed to delegate the exercised powers to the EPA. The majority said, yeah, maybe, but this is a BIG DEAL. This isn’t filling in gaps. This is a ginormous policy approach. And for that we assume that Congress “ doesn’t hide elephants in mouse holes.”

So, even in the EPA case it was still a textualism battle and they simply disagreed over what cannon of interpretation applied. They’re probably both right in their textualism arguments, I think, but I’m very much inclined to think the Major Question Doctrine is correct.

On big issues I don’t think we should let agencies create law unless they’ve been expressly authorized to do so.

[iam416]

The downside to textualism is that sloppy drafting is punished. I also think you can get a little too formalistic and literal. The “gay rights” is in “because of sex” interpretation is probably an example. But, you know, that doesn’t happen often and I’d much rather have Gorsuch turning the screws on actual language than Brennan literally ignoring the language in the name of whatever he deems to be the true legislative purpose.