West Virginia v. Environmental Protection Agency, which in June gutted the Biden administrations ability to reduce the electrical power industrys carbon emissions, may be the Supreme Courts most reckless and lawless decision (in an extremely competitive field). The court comes close to anarchism, crippling Congresss capacity to protect the country from disaster and undermining the fundamental purpose of the Constitution.
Chief Justice John Roberts, writing for the court, embraced a newly bloated version of the major questions rule for interpreting statutes, one that Congress could not have known about when it gave the president the power to create environmental regulations: there are extraordinary cases . . . in which the history and the breadth of authority that the agency has asserted and the economic and political significance of that assertion provide a reason to hesitate before concluding that Congress meant to confer such authority. The challenged Obama-era plan would have restructured an entire industry, and Roberts declared that there was little reason to think Congress assigned such decisions to the Agency.
If you need a reason, how about the plain words of the statute? Section 111of the Clean Air Act instructs the EPA to select the best system of emission reduction for power plants, as part of its mandate to regulate stationary sources of any substance that causes, or contributes significantly to, air pollution and may reasonably be anticipated to endanger public health or welfare.
Roberts says the court should look to the history and breadth of the authority asserted by the agency as well as the economic and political significance of the regulation, and then speculate as to whether Congress really meant to confer such authority. But the best evidence of what Congress meant is the language it enacted.
The current Court is textualist only when being so suits it, wrote Justice Elena Kagan, dissenting. When that method would frustrate broader goals, special canons like the major questions doctrine magically appear as get-out-of-text-free cards. (A few months ago, she made the same point about the courts invalidation of OSHAs rules to limit COVID-19 in workplaces.) The courts decision is already being cited in challenges to regulations of pipelines, asbestos, nuclear waste, corporate disclosures and highway planning.
Roberts observes that the EPA has rarely used its Section 111 power. But statutes dont disappear because they arent being used. They remain in effect until they are repealed. Right now, we are seeing antiabortion laws that have been dead for half a century suddenly spring back into life.
Justice Neil Gorsuch, concurring, offers a more specific account of how one decides what counts as a major question, explaining that the first question a court should ask is whether an agency claims the power to resolve a matter of great political significance.
How does a court know what gives a matter great political significance? Gorsuch cites earnest and profound debate across the country not at the time of enactment, but decades later. OSHAs effort to prevent thousands of COVID-19 deaths was improper because it came at a time when Congress and state legislatures were engaged in robust debates over vaccine mandates.
I thought I was offering a reductio ad absurdum last January when I wrote that the Supreme Court was making Fox News a source of law. But Gorsuch isnt even hiding it: If the conservative press raises enough of a fuss to trigger a political fight, then government action that was previously authorized will become illegal.
Congress in the 1970s was under the impression that air pollution and workplace dangers were unquestionably evils, and that creating agencies was the best way to address those threats. The court declared way back in 1819 that Congress has broad discretion to choose the most convenient means for carrying out its powers. Kagan observed: A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesnt and cant know when it drafts a statute.
It knew that scientific knowledge would improve. For instance, now we understand that coal the leading source of water and air pollution is the worst fossil fuel: When one accounts for the costs it imposes, every unit that is burned has negative economic value. The EPA aimed to have coal provide 27 percent of the nations electricity by 2030, down from 38 percent in 2014.
Most Americans once would have been astounded to learn that anyone would ever try to block efforts to contain a pandemic or prevent environmental catastrophe. The courts decision reflects the growing influence of libertarianism, which thinks that liberty means a government that is small and weak. Libertarians have been unable to think clearly about environmental harms. Thats why, for all their purported cold rationality, they are drawn to daffy climate change denialism and, more recently, antivaxx ideology. The libertarians capture of the Republican Party is so complete that its members will not give President Biden a single vote for his climate plan. Actually, from a libertarian standpoint, the effects of climate change involve clear violations of property rights that the state must remedy: One isnt permitted to devastate other peoples land.
The slogan abolish the police, embraced by some on the left, is foolish because it focuses on government dysfunction while failing to notice what government is for. The court has now embraced its own form of reckless anarchism and at the worst possible time. In the midst of a deadly plague and worsening climate catastrophe, it has blocked Congresss ability to choose the tools it deems most effective and left unclear what Congress or the EPA is now allowed to do to protect the human race from impending disaster.
Gorsuch presumes that an agency exceeds its authority when it seeks to regulate a significant portion of the American economy, or require billions of dollars in spending by private persons or entities. Both he and Roberts tell us, in effect, that the bigger the problem, the less capacity Congress has to address it by delegation. This is like a weirdly selective form of police abolition that abolishes only the homicide squad or yanks police out of high-crime neighborhoods.
There have always been some Americans who did not like the Constitution, who thought that it created government that was too powerful. In 1788 they almost prevented it from being ratified. Most voters, however, have repeatedly rejected the radical libertarian notion that liberty means a government too feeble to solve the nations most urgent problems. They voted that way when the Constitution was adopted, and again when Congress created these agencies. Todays Supreme Court perversely interprets law as if the Constitutions opponents had won.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martins Press, forthcoming).Follow him on Twitter@AndrewKoppelman.
View original post here:
Climate change and the Supreme Courts version of police abolitionism - The Hill
- Learn from Libertarians | Commentary | thestatehousefile.com - The Statehouse File - March 10th, 2024 [March 10th, 2024]
- Review: Sheriff in 'Fargo' Gives Libertarians a Bad Name - Reason - March 10th, 2024 [March 10th, 2024]
- Why Libertarianism Is Not Mainstream (But Should Be) | Henry Gardella - Foundation for Economic Education - March 10th, 2024 [March 10th, 2024]
- Donald Rainwater to lead Indiana Libertarian ticket as party chooses its 2024 nominees - WFYI - March 10th, 2024 [March 10th, 2024]
- Could the Libertarian Party nominate RKF Jr.? - NewsNation Now - March 10th, 2024 [March 10th, 2024]
- 2024 election: These Libertarians will be on Indiana's ballot - IndyStar - March 10th, 2024 [March 10th, 2024]
- Why Do All These Homosexuals Keep Sucking My Cock? - The Onion - January 4th, 2023 [January 4th, 2023]
- Russell Kirk - Wikipedia - December 21st, 2022 [December 21st, 2022]
- Maj Toure: Why Black Gunsand LibertarianismMatter - December 12th, 2022 [December 12th, 2022]
- Georgia's 'blank ballot' voters | Who are they? And why did they do it? - 11Alive.com WXIA - December 12th, 2022 [December 12th, 2022]
- Exclusive: No official records of personal meeting between Institute of Economic Affairs and Jacob Rees-Mogg - NationalWorld - December 12th, 2022 [December 12th, 2022]
- Markets Fail. . .And Libertarianism Still Works, 10/16 - November 25th, 2022 [November 25th, 2022]
- The Bill of Rights: A Transcription | National Archives - November 7th, 2022 [November 7th, 2022]
- 'Centre, states need to work together for a developed India': FM Sitharaman on 'Atmanirbhar Bharat' - The Economic Times - November 7th, 2022 [November 7th, 2022]
- Libertarianism: Definition & Examples | StudySmarter - October 21st, 2022 [October 21st, 2022]
- In N.H., its live Free State or leave thats libertarianism? - The Boston Globe - September 11th, 2022 [September 11th, 2022]
- Cryptos Libertarianism Is Running Headfirst Into Reality - The Atlantic - September 11th, 2022 [September 11th, 2022]
- The 'red wave' was such a sure thing, of course Republicans are blowing it The Nevada Independent - The Nevada Independent - September 11th, 2022 [September 11th, 2022]
- Jim, Sigal, and Michele just living their best lives - Nevada Current - September 11th, 2022 [September 11th, 2022]
- Long Live the King (My President)! - Econlib - September 11th, 2022 [September 11th, 2022]
- How Housing Is Captive to Investment Demands - Santa Barbara Independent - September 11th, 2022 [September 11th, 2022]
- Arkansas governor candidates hitting the campaign trail - 4029tv - September 11th, 2022 [September 11th, 2022]
- Aaron Rodgers Sounds Off On Government: NFL World Reacts - The Spun - September 11th, 2022 [September 11th, 2022]
- David Boaz - Wikipedia - September 7th, 2022 [September 7th, 2022]
- Arlington Heights board gets petition from Koch brothers-backed group calling for law that may impact Chicago Bears' stadium plans - Chicago Tribune - September 7th, 2022 [September 7th, 2022]
- Georgias Senate Race Is Much Closer Than The Governor Election. Will That Hold Until November? - FiveThirtyEight - September 7th, 2022 [September 7th, 2022]
- Letter: The threat against democracy | Letters To Editor | berkshireeagle.com - Berkshire Eagle - September 7th, 2022 [September 7th, 2022]
- Vote in the State Primary - mysouthborough - September 7th, 2022 [September 7th, 2022]
- Group catering to nonpartisan voters launches ahead of the election The Nevada Independent - The Nevada Independent - September 7th, 2022 [September 7th, 2022]
- Libertarian Party of Wisconsin: Wisconsin Libertarians oppose student loan forgiveness ideas as theft - WisPolitics.com - September 2nd, 2022 [September 2nd, 2022]
- Guardrails of Democracy, Extended: Comparing Notes On The Team Libertarian Report - Reason - September 2nd, 2022 [September 2nd, 2022]
- Attempted Murder Arrest; Libertarians On The 2022 Ballot? PM Patch NH - Patch - September 2nd, 2022 [September 2nd, 2022]
- Chase Oliver could send Georgia's Senate race to a runoff - he's OK with that - The Atlanta Journal Constitution - September 2nd, 2022 [September 2nd, 2022]
- Rep. Stephen Handy, ousted at GOP convention, to wage write-in bid - Standard-Examiner - September 2nd, 2022 [September 2nd, 2022]
- J. R. R. Tolkien among the Illiberals Catholic World Report - Catholic World Report - September 2nd, 2022 [September 2nd, 2022]
- We Made It Through The Primary. Now It's On To The November General Election - Honolulu Civil Beat - September 2nd, 2022 [September 2nd, 2022]
- The Great Separation: Why American Politics Is Coming Apart at the Seams | Cornell Chronicle - Cornell Chronicle - August 30th, 2022 [August 30th, 2022]
- Palfrey eyes the exits- POLITICO - POLITICO - August 30th, 2022 [August 30th, 2022]
- Armstrong: Behind those misleading headlines on Colorado teacher pay - Complete Colorado - August 30th, 2022 [August 30th, 2022]
- What is a Libertarian? Beliefs & Examples | Study.com - August 29th, 2022 [August 29th, 2022]
- Libertarian Vs. Liberal (Whats The Difference?) - The Cold Wire - August 29th, 2022 [August 29th, 2022]
- Libertarianism Philosophy and History - Study.com - August 29th, 2022 [August 29th, 2022]
- Republican effort to remove Libertarians from November ballot rejected by Texas Supreme Court - The Texas Tribune - August 29th, 2022 [August 29th, 2022]
- Media organizations and civil libertarians sue to stop a law that restricts recording videos of cops - Arizona Mirror - August 29th, 2022 [August 29th, 2022]
- How a Tiny Minority Can Lead the World Toward Liberty | Dan Sanchez - Foundation for Economic Education - August 29th, 2022 [August 29th, 2022]
- GOP Candidate Saying it's 'Totally Just' to Kill Gay People Resurfaces - Newsweek - August 29th, 2022 [August 29th, 2022]
- Third Party Candidates: Alabama Libertarians to appear on general election ballot - WHNT News 19 - August 15th, 2022 [August 15th, 2022]
- Sick and tired of the two-party system: Pa. Libertarian Party sees surge in interest | Today in Pa. - PennLive - August 15th, 2022 [August 15th, 2022]
- Voter registrations in North Carolina continue to trend mostly unaffiliated and slightly Republican - The Mountaineer - August 15th, 2022 [August 15th, 2022]
- After Koch's Kinder, Gentler Rebrand Attempt, He Spent Over $1 Billion On 2020 Elections - Daily Kos - August 15th, 2022 [August 15th, 2022]
- Libertarian, Green, and Independent Candidates not Invited to Gubernatorial Debate The Amarillo Pioneer - The Amarillo Pioneer - August 15th, 2022 [August 15th, 2022]
- Runoffs to decide final nominations begins with early voting next week - Yahoo News - August 15th, 2022 [August 15th, 2022]
- Podcast: Muddling Through the Mar-a-Lago Mess - Reason - August 15th, 2022 [August 15th, 2022]
- The Story Behind the Wrenching Finale of 'The Anarchists' - WIRED - August 15th, 2022 [August 15th, 2022]
- The Search of Trumps House + the 5th Amendment - Econlib - August 15th, 2022 [August 15th, 2022]
- Libertarians see opening to gain ground in Georgia 2022 elections - The Atlanta Journal Constitution - August 4th, 2022 [August 4th, 2022]
- State Libertarian Party asks for 'relief from oppressive ballot laws' - The Albany Herald - August 4th, 2022 [August 4th, 2022]
- Election 2022: Primaries clear Michigan fields; more will come at conventions - The Center Square - August 4th, 2022 [August 4th, 2022]
- The Industrial Revolution and the Colonial Conundrum - Econlib - August 4th, 2022 [August 4th, 2022]
- School choice is the free market solution to failing public schools - Washington Examiner - August 4th, 2022 [August 4th, 2022]
- The primary is over Here's who you can expect to see on JoCo ballots in November - Shawnee Mission Post - August 4th, 2022 [August 4th, 2022]
- Discontent Is Never Enough - by Jonah Goldberg - The G-File - The Dispatch - August 4th, 2022 [August 4th, 2022]
- Progressive Conservatism: How Republicans Will Become America's Natural Governing Party - The Ripon Society - August 4th, 2022 [August 4th, 2022]
- Local News: Donnie Brown elected as 149th representative (8/2/22) | Standard Democrat - Standard-Democrat - August 4th, 2022 [August 4th, 2022]
- Former TV anchorman wins GOP nomination in Missouris 4th Congressional District - Missouri Independent - August 4th, 2022 [August 4th, 2022]
- Penn Jillette: Did His Libertarianism Survive Trump and COVID? - Reason - July 29th, 2022 [July 29th, 2022]
- Libertarian and Anti-functionalist: What Is the Memphis Design Movement? - ArchDaily - July 29th, 2022 [July 29th, 2022]
- 11 Pick Up Lines For Libertarians To Use If They Ever Meet A Girl - The Babylon Bee - July 29th, 2022 [July 29th, 2022]
- Nudged into the oncoming lane - Econlib - July 29th, 2022 [July 29th, 2022]
- Quebec's Conservative party surges in the polls as some of its candidates spread conspiracy theories - CBC News - July 29th, 2022 [July 29th, 2022]
- Accusations of racism and abortion politics- POLITICO - POLITICO - July 29th, 2022 [July 29th, 2022]
- Zeldin's Fraudulent Independence Party Signatures Show How Difficult it is to get on Ballot in NY - Yonkers Times - July 29th, 2022 [July 29th, 2022]
- How Republicans can build on Trumpism and become the party of progressive conservatism - The Hill - July 29th, 2022 [July 29th, 2022]
- Illinois quick hits: White withdraws from race; Durbin tests positive for COVID - The Center Square - July 29th, 2022 [July 29th, 2022]
- Romney's Family Plan Isn't Great, but May Be Better Than the Alternatives - Reason - July 29th, 2022 [July 29th, 2022]
- Andrew Yang's third party Forward isn't enough to transcend politics - MSNBC - July 29th, 2022 [July 29th, 2022]
- John Cleese: Wokeism Is the Enemy of Comedyand Creativity - Reason - July 29th, 2022 [July 29th, 2022]
- What's Wrong With Abortion Federalism? - Reason - June 29th, 2022 [June 29th, 2022]
- The myth of American conservatism - UnHerd - June 29th, 2022 [June 29th, 2022]
- CHAMPLAIN IS TREASURER: Whitewater to face Sterling in November; Brecheen, Frix head for D2 Congress runoff - Tahlequah Daily Press - June 29th, 2022 [June 29th, 2022]