Supreme Court uses made up theory to undermine the EPA


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EPA Limits

The Supreme Court ruled 6-3 on Thursday that the EPA does not have the authority to regulate greenhouse gas emissions from power plants.

The case, West Virginia v. Environmental Protection Agency, centers on red states’ and coal companies’ challenge to an Obama-era rule called the Clean Power Plan that never took effect. The Supreme Court could have decided that the plaintiffs had no right to seek review because the Biden administration does not intend to reinstate the Clean Power Plan. However, Chief Justice John Roberts contends that because the Biden administration “vigorously defends” the approach that the Obama EPA took with the CPP, the Supreme Court can weigh in.

Turning to the merits of the case, Roberts wrote for the majority that the EPA violated the “major questions doctrine” by overstepping the authority Congress granted the agency. Under this doctrine—revived by the Roberts court in 2014—federal agencies can’t implement policies of major political and economic significance without express permission from Congress. In practice, the Roberts court has used the doctrine to veto regulation it disagrees with.

This is a major questions case. EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself. Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d).

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme…A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Justice Elena Kagan, joined by Breyer and Sotomayor, dissented. “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.”

Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.

Kagan also takes aim at the conservative majority’s purported embrace of textualist analysis:

Some years ago, I remarked that “[w]e’re all textualists now.” It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get out-of-text-free cards

What this means

The EPA is not prohibited from regulating greenhouse gas emissions from power plants but the Court severely limits how it may do so. Instead of treating the power plants of each state as a single entity, issuing emission goals as a state unit, the EPA must now regulate emissions from power plants individually—a costly and time-consuming process.

The Atlantic: There’s sort of this Justice Roberts move that’s very typical, where he says, “Oh, we’re just deciding the case before us.” But in reality, any other options that would involve, let’s say, systemwide change, are pretty clearly ruled out. So could you have a cap-and-trade program [under the Clean Air Act]? The answer is no, under this decision. Could you have some sort of efficiency regulation, which was initially considered under the Clean Power Plan—like, go after [electricity] demand rather than supply as a way to reduce emissions? I would say, probably not—I’d be extremely skeptical that could survive review. Any potential regulation has to stay “inside the fence line” [of a power plant].

The majority’s full-throated embrace of the major questions doctrine also has implications for other federal agencies, potentially limiting regulatory actions like Covid-19 prevention measures and student loan relief.

The Atlantic (linked above): The hard thing is going to be predicting when this new body of administrative law, this major-questions doctrine, is going to apply and when it isn’t. Because Chevron is still the law under normal circumstances. But the question is, who decides what’s normal and what isn’t? And I think that one of the major criticisms of this approach is that basically that’s left to the Supreme Court, and it’s normal when they think it is, and it’s “extraordinary” when they think it’s extraordinary.

So you’re left kind of guessing what the Court thinks. And it’s not rooted in a particular theory of constitutional law. I think it’s really unclear where the boundaries of this new kind of administrative law are, and the Court has not made much of an effort to articulate them.

Remain in Mexico

The Supreme Court sided with the Biden administration in letting it scrap the Trump-era “Remain in Mexico” policy that required asylum-seekers to wait in Mexico while their claims were decided. Chief Justice Roberts, joined by Justices Brett Kavanaugh, Elena Kagan, Sonia Sotomayor, and Stephen Breyer, made up the majority.

By interpreting section 1225(b)(2)(C) as a mandate, the Court of Appeals imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico. …under the Court of Appeals’ interpretation, section 1225(b)(2)(C) authorized the District Court to force the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate, and to supervise its continuing negotiations with Mexico to ensure that they are conducted ‘in good faith.’

There is a caveat, however: The majority remands the case to Trump Judge Matthew Kacsmaryk, whose incorrect reading of federal law prevented Biden from rolling back Remain in Mexico for over a year. There is no guarantee Kacsmaryk won’t “misread” the law again and—with the assistance of the hyper-conservative 5th Circuit—block the administration from lifting the program under different reasoning.

  • Reminder: Remain in Mexico, while a cruel program, has not been the main driver of returns and expulsions. 1,460 people were returned to Mexico in May; 100,699 were expelled via Title 42 during the same time frame.

Path to a coup

The Supreme Court agreed on Thursday to hear a case that could remove the power of state courts, commissions, and governors to act as a check on the power state legislatures have over election matters.

The case, Moore v. Harper, involves the Republican-controlled North Carolina legislature’s challenge to a North Carolina Supreme Court decision invalidating gerrymandered maps. Legislators point to the Elections Clause of the U.S. Constitution, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” According to the lawmakers, this means that the Constitution gives state legislatures alone the power to regulate federal elections in their states.

Depending on how far the Court determines this authority to extend, it could potentially rule that only the state legislatures may control elections—whether that be ballot handling measures, voter registration procedures, the creation of redistricting maps, or the appointing electors during presidential elections. No state court, governor, secretary of state, or state constitution can limit the legislature’s power to regulate elections under this reading, known as the inde­pend­ent state legis­lature theory.

John Eastman, the pro-Trump attorney who tried to overturn the 2020 election, openly pushed the inde­pend­ent state legis­lature theory as justification to throw out Biden’s victories in key states like Arizona, Wisconsin, Georgia, Michigan, and Pennsylvania.

Indeed, the theory “provide[s] the path for election subversion,” in election law expert Rick Hasen’s words. “This extreme position would essentially neuter the development of any laws protecting voters more broadly than the federal constitution based on voting rights provisions in state constitutions.”

Four justices—Neil Gorsuch, Clarence Thomas, Samuel Alito, and Brett Kavanaugh—have all endorsed some version of the independent state legislature theory. It seems very likely that, with Amy Coney Barrett, the conservative majority will take away the state courts’ power to affect election rules at the very least.

A snapshot of the Supreme Court’s 2021-2022 term

Rivas-Villegas v. Cortesluna: SCOTUS reversed the lower court to give a cop qualified immunity for using excessive force

Tahlequah v. Bond: SCOTUS reversed the lower court to give a cop qualified immunity for killing a man

Shoop v. Twyford: SCOTUS made it harder to get habeas relief

Brown v. Davenport: SCOTUS made it harder to get habeas relief

Shinn v. Ramirez: SCOTUS made it harder to get habeas relief

U.S. v. Zubaydah: SCOTUS allowed the government to withhold information about torture on CIA black sites

U.S. v. Vaello-Madero: SCOTUS denied social security benefits to residents of Puerto Rico

Cummings v. Premier Rehab Keller: SCOTUS disallowed recovery for emotional-distress damages in civil rights lawsuits

Patel v. Garland: SCOTUS stripped federal courts of jurisdiction to review fact issues in immigration proceedings

Biden v. Missouri: SCOTUS blocked a federal vaccine mandate

Garland v. Gonzalez: SCOTUS denied long-detained immigrants’ access to a bond hearing

Johnson v. Arteaga-Martinez: SCOTUS denied long-detained immigrants’ access to a bond hearing

FEC v. Ted Cruz: SCOTUS struck down campaign finance restrictions to enable Ted Cruz to pay himself back for loans he made to his own campaign

Egbert v. Boule: SCOTUS further limited a person’s ability to sue federal officers

Vega v. Tekah: SCOTUS weakened enforcement of Miranda rights

Carson v. Makin: SCOTUS undermined the Establishment Clause, forcing states to fund private religious schools

Kennedy v. Bremerton Sch. Dist.: SCOTUS undermined the Establishment Clause, allowing football coach to have public/publicized Christian prayers at football games

Denezpi v. U.S.: SCOTUS recognized tribal sovereignty just enough to allow an Indian defendant to be prosecuted twice for the same crime (no double jeopardy)

Oklahoma v. Castro-Huerta: SCOTUS undermined tribal sovereignty by making tribal land “part of state” and allowing the state to exercise jurisdiction on tribal land

NY State Rifle & Pistol Assn v. Bruen: SCOTUS struck down New York’s 100 year old restriction on concealed carry to expand 2A and limit gun restrictions

U.S. v. Texas: SCOTUS allowed Texas’s “bounty hunter” anti-abortion law to go into effect

Dobbs v. Jackson Women’s Health: SCOTUS overruled Roe & Casey, eliminating the federal right to abortion and enabling severe (life-threatening) restrictions on abortion to go into effect

West Virginia v. EPA: SCOTUS undermined the EPA’s ability to regulate emissions and fight global warming