Trump judge dismisses key Jan. 6 charge; Courts limit Biden climate policies
Jan. 6 obstruction
Trump-appointed D.C. District Judge Carl Nichols dismissed a criminal corruption charge against Jan. 6 defendant Garret Miller in a break from 10 of his colleagues.
Miller drove from Dallas to participate in the insurrection, where he allegedly resisted police officers and trespassed into the Capitol building with fellow rioters. He then made a string of death threats towards Rep. Alexandria Ocasio Cortez and the officer who shot insurrectionist Ashli Babbitt, documenting his crimes on social media (complaint pdf).
In addition to discussing his own actions at the Capitol, MILLER also discussed the shooting of a woman by a U.S. Capitol Police Officer during the pro-Trump riots on January 6, 2021. During that discussion on January 10, 2021, MILLER stated, “We going to get a hold of [the USCP officer] and hug his neck with a nice rope[.]” The individual with whom he was chatting responded, “Didn’t you say you were a Christian or some lie?” to which MILLER responded, “Justice . . . Not murder . . . Read the commandment . . . theres [sic] a difference.”
Miller, like many other Jan. 6 defendants, challenged the government’s obstruction of an official proceeding charge. Unlike other defendants, whose motions to dismiss were struck down by federal judges, Miller’s case was assigned to a Trump judge who interpreted the legal statute in his favor.
Judge Nichols ruled (pdf that obstruction of an official proceeding can only occur if the defendant directly attempts to destroy an official document. “Nothing in Count Three (or the Indictment more generally) alleges, let alone implies, that Miller took some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence Congress’s certification of the electoral vote,” Nichols wrote.
If the government does not appeal Nichols’ decision, and if higher courts do not overturn it, the ruling could impact the cases of other Jan. 6 defendants. Proud Boys leader Enrique Tarrio, for example, faces an obstruction charge that could now be thrown out.
The Supreme Court heard arguments in West Virginia v. EPA, a case brought by 18 Republican states challenging the Environmental Protection Agency’s power to control greenhouse gas emissions. The dispute involves the 2015 Clean Power Plan (CPP), which set power-plant emissions goals for individual states, that was put on hold by the Supreme Court in 2016.
The energy sector reached the goals outlined by the CPP in three years, phasing out older, dirtier parts and plants in order to reduce emissions (and save money). The CPP never took effect and was never enforced.
Nevertheless, West Virginia, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming sued the EPA seeking to rehash the challenge to an old program not in effect.
The Supreme Court taking this case is questionable in itself given the lack of live dispute between two parties—any injury is hypothetical. But more questionable is the true goal of the Republican states: to permanently hobble the federal government’s power to regulate.
The major questions doctrine claims that there are fairly strict limits on federal agencies’ power to hand down particularly impactful regulations. As the Court most recently stated in NFIB v. OSHA (2022), “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And several of the plaintiffs in West Virginia argue that the Clean Air Act isn’t sufficiently clear to justify a regulation like the Clean Power Plan.
One problem with this major questions doctrine is that it is vague. The Court has never explained what constitutes a matter of “vast economic and political significance,” or just how “clearly” Congress must “speak” to permit an agency to issue significant regulations. So, in practice, the major questions doctrine largely just functions as a veto power, allowing judges to justify blocking nearly any regulation they do not like. If a judge doesn’t like a particular regulation, they can just claim that it is too big.
During oral arguments on Monday, the Supreme Court’s six-member conservative bloc appeared skeptical of EPA arguments, setting up a potential ruling against the ability of federal agencies to issue regulations.
In questioning Solicitor General Elizabeth Prelogar about the extent of the EPA’s statutory authority, Justice Samuel Alito twice denied the reality of the climate emergency.“What weight do you assign to … climate change, which some people believe is a matter of civilizational survival?” And in a follow-up question, he again framed dangerous climate disruption in hypothetical terms, stating that he didn’t see how considering costs of regulation would limit the EPA’s authority “if you take arguments about climate change seriously, that this is matter of survival.”
Social cost of carbon
A Trump-appointed judge issued a preliminary injunction to stop the Biden administration from adjusting the “social cost of carbon” to pre-Trump levels.
The social cost of carbon is a dollar figure per ton of carbon dioxide released, meant to describe the cost to society, including to future generations, that is not covered by the price people pay for fossil fuels and other greenhouse gas-producing activities. The government uses this number when considering the costs and benefits of regulations and purchasing decisions.
The Obama administration set the cost at $51 per metric ton in 2016. But then, Trump slashed the estimate to just $1-$7, allowing him to loosen climate regulations and justify more aggressive fossil fuel investments. Biden, in turn, raised the social cost back to $51 in 2021.
The Attorneys General of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia, and Wyoming sued to block the adjustment, arguing that Congress never granted the Biden administration the authority to base regulatory policy upon global considerations. In other words, the federal government can only consider the cost of carbon dioxide emissions in the United States.
Last week, Louisiana District Judge James Cain (a Trump appointee), ruled in favor of the Republican states (pdf). Cain, a member of the Federalist Society, relied on an originalist interpretation of the major questions doctrine and Nondelegation Doctrine to justify his injunction, essentially consolidating power in the judiciary.
- Further reading: Strict Scrutiny podcast episode on the Nondelegation doctrine and Vox article. The Regulatory Review article on the weaponization of the Major Questions doctrine.
Three states are suing to block Biden’s Executive Order requiring most federal contractors to pay a minimum wage of at least $15 per hour to their employees. The Republican Attorneys General of Texas, Louisiana, and Mississippi allege that the change is unlawful without approval from Congress (pdf).
President Biden has attempted to arrogate to himself the authority to impose sweeping changes on American society with little more than the stroke of a pen. In pursuit of partisan political objectives, Defendants are unilaterally attempting to impose a radical policy—a dramatic and rapid increase in the minimum wage for federal contractors—with little apparent regard for the widespread havoc on the economy that will result. And in a stunning display of hubris, Defendants have demonstrated no compunction in using unlawful executive orders to mandate policies that have been considered and rejected by Congress.
The current minimum wage in Texas, Louisiana, and Mississippi is $7.25 and has been in place for more than a decade.