The Supremes

[Js1 87306]

Oh boy!

 

[BehoId, The Underminer! 11669]

1 hour ago, Ghost of LL said:

-where the chapters about the North losing the Civil War

The North will rise again!

[chainsaw 10313]

40 minutes ago, Js1 said:

Roberts and Kav join the liberals in ruling “Remain in Mexico” can be shut down 

Isn't it Ironic that the Supremes waited until after they destroy the US? I know where I'd rather "remain" these days

[Mdhorn 6166]

If it damages the left, Clarence Thomas is a rubber stamped yes.  

[Pig Bellmont 8888]

1 minute ago, Js1 said:

Oh boy!

 

It’s worse. This means a GOP state legislature can vote to send fake electors, despite losing the vote, and a state court couldn’t do anything about it. It’s paving the way for Trump’s coup plan to be successful in 2024

[Laxtonto 13328]

26 minutes ago, Brisketexan said:

 

Yes to these.  I was expecting a nuclear apocalypse, but only got a Dresden firebombing.  So....yay.

I think Chevron will be on the chopping block (or at least majorly redefined), but this case didn't allow the court enough leeway to better define the alternative. They probably need a more multifaceted agency conflict that can then be used to stratify what is considered something an agency can act upon and what would be considered a reasonable interpretation.

I have always felt that in someways Chevron ended up making Congress "lazy" in that it provided such broad criteria of what the agencies could act upon due to the undefined implicit areas that they stopped actually having to negotiate with each other to add additional new facets to the agencies and instead just waited till their side was in control of the agency to get their way. Without those low-level smaller agency criteria negotiations to build trust and a back and forth, we now only have major topics that are ideologically divisive that leads to gridlock because nobody is willing to attempt any give and take.

 

There should always be something there to provide a mechanism for an agency to generate a ruling on something never thought of, but the current process has become so broad in its use that it is mitigating Congress' willingness to act.

Edited June 30, 2022 by Laxtonto

[Brisketexan 107046]

3 minutes ago, Dahobbs said:

Honestly, it doesn't appear to be that terrible of a decision. There is at least something akin to legal analysis and it doesn't blow up previously decided law. I actually don't have a problem with reining in the administrative state a tad, particularly where Congress hasn't clearly delegated a task to an agency. I really can't say that this is a clearly wrong outcome. A blow to environmental concerns, sure. But, legally, I'm not sure the Court is wrong. What will concern me is when the actions of an action on immigration by ICE/DHS is challenged under Trump II and inevitably this same court blows past this decision in reaching a contrary result. 

Correct.  I don't think that this decision is particularly bad or wrong....however, it telegraphs enough logical holes and a LACK of a clear test on the "major questions" doctrine (and on how to determine the scope of an agency's power in general) that I see it as busting down the door to allow some killing-blow assaults on the administrative state.  This case is not the death of administrative regulation.  But it may be the first major step in leading to its eventual demise.  Gorsuch's concurrence (which, by the way, demonstrates perhaps the most laughable lack of self-awareness I've ever read in a legal opinion) sure hints at that.

Re Gorsuch's lack of self-awareness and intellectual dishonesty: His critique of how laws should be imposed, and how laws should enjoy wide social acceptance, and warns against the edicts of “unelected officials.”  Wow.  Also, his concurrence actually states that an agency’s past consideration of the breadth of its authority should be a factor in determining whether such authority exists.  Of course, he only cites it in the context of NEGATIVE evaluations of that authority (that is, if the agency in the past said “this statute doesn’t give us the power to do X,” that is telling)…..I doubt he’ll be logically consistent and apply it the other way (which is a logical counterpart of Chevron deference).  

If this was a real, legitimate court, this decision wouldn't be alarming.  Hell, I think it's probably a correct decision.   But knowing that this will now be used to play more Calvinball ("the scope of agency authority is whatever we decide it is, based entirely on the outcome we like"), it's still a shitshow.

 

[Pig Bellmont 8888]

6 minutes ago, Dahobbs said:

Honestly, it doesn't appear to be that terrible of a decision. There is at least something akin to legal analysis and it doesn't blow up previously decided law. I actually don't have a problem with reining in the administrative state a tad, particularly where Congress hasn't clearly delegated a task to an agency. I really can't say that this is a clearly wrong outcome. A blow to environmental concerns, sure. But, legally, I'm not sure the Court is wrong. What will concern me is when the actions of an action on immigration by ICE/DHS is challenged under Trump II and inevitably this same court blows past this decision in reaching a contrary result. 

I think this is incorrect. All regulations can be challenged and potentially blocked by federal courts deciding it’s a “major question”

 

[Bateshorn 9991]

From my personal perspective, I hope this pushes Congress towards a ghg tax and stop trying to regulate carbon and getting to cute by half. 

[David Dennison 19571]

Oh, good.

 

Edited June 30, 2022 by David Dennison
Looks like this was covered above.

[Pig Bellmont 8888]

More on the EPA case

 

[Brisketexan 107046]

13 minutes ago, Pig Bellmont said:

I think this is incorrect. All regulations can be challenged and potentially blocked by federal courts deciding it’s a “major question”

 

Kagan is absolutely right to point the argument that will be made -- by poorly defining the parameters of what constitutes a "major question," there will be much litigation about whether any number of agency actions constitute a major question.  If we lived under an intellectually honest judiciary, I would have hope that the result would be further refinement of the doctrine, applied in a way consistent with a clear understanding of the power of Congress to actually delegate certain matters.

But, since we live in the era of Calvinball, it will be used to bless regulations the court and its Federalist society, regulatory capture crowd backers like, and void those it doesn't, in purely outcome determinative decisions that are allowed by their vague "whatever we want it to be" standard.

13 minutes ago, Bateshorn said:

From my personal perspective, I hope this pushes Congress towards a ghg tax and stop trying to regulate carbon and getting to cute by half. 

A less cynical, idealistic Brisket would have agreed with you.  Congress needs to get off its ass and do its fucking job, and maybe this sort of ruling is the kick in the pants to do that.  But looking at Congress, particularly the Senate......

 

Oh, and I disagree with Vladeck's take above.  As to this type of issue -- broad regulation of ghg emissions -- Congress absolutely could pass legislation to do not just what the EPA tried to do here specifically, but could grant broad powers to EPA.  The real point and problem is....it won't, because we don't have a functional Congress, and haven't for decades.  And we're never getting one back, because we're hopelessly divided with a broken Senate.

Edited June 30, 2022 by Brisketexan

[wildcat09 29601]

11 minutes ago, Brisketexan said:

Correct.  I don't think that this decision is particularly bad or wrong....however, it telegraphs enough logical holes and a LACK of a clear test on the "major questions" doctrine (and on how to determine the scope of an agency's power in general) that I see it as busting down the door to allow some killing-blow assaults on the administrative state.  This case is not the death of administrative regulation.  But it may be the first major step in leading to its eventual demise.  Gorsuch's concurrence (which, by the way, demonstrates perhaps the most laughable lack of self-awareness I've ever read in a legal opinion) sure hints at that.

Re Gorsuch's lack of self-awareness and intellectual dishonesty: His critique of how laws should be imposed, and how laws should enjoy wide social acceptance, and warns against the edicts of “unelected officials.”  Wow.  Also, his concurrence actually states that an agency’s past consideration of the breadth of its authority should be a factor in determining whether such authority exists.  Of course, he only cites it in the context of NEGATIVE evaluations of that authority (that is, if the agency in the past said “this statute doesn’t give us the power to do X,” that is telling)…..I doubt he’ll be logically consistent and apply it the other way (which is a logical counterpart of Chevron deference).  

If this was a real, legitimate court, this decision wouldn't be alarming.  Hell, I think it's probably a correct decision.   But knowing that this will now be used to play more Calvinball ("the scope of agency authority is whatever we decide it is, based entirely on the outcome we like"), it's still a shitshow.

 

You and Hobbs are forgetting that the major questions doctrine is made up nonsense with no basis in the text of the Constitution, or in history or anything but extremely recent (and clearly bullshit) precedent. You're imposing your own politics of "there's got to be some constraint on what the executive can claim Congress has delegated to it" onto their decision. It's not "wrong" in the sense that a reasonable policy argument could be made for why such a doctrine would be a good idea to have, but it's absolutely wrong in that it's simply not and has never been part of our actual law.

[WhatTheBuck 28942]

1 hour ago, Captainant said:

and like how Reagan was a smarter, slicker nixon - so too will desantis (or whomever the chosen authoritarian is) be a smarter and slicker trump.

History has a funny way of rhyming.

First time I’ve ever heard Reagan described as smart. You lost me there. There was a classic sketch on SNL that was only funny because everyone knew he wasn’t smart.

 

[Dahobbs 18427]

4 minutes ago, Pig Bellmont said:

More on the EPA case

 

Eh, maybe. This decision may be the harbinger of that a result. But it doesn't announce it. The EPA regulating our mix of power generation is a bit of a mismatch of agency and objective. Congress didn't clearly, in my view, expand the EPA's authority to include regulating major aspects of power generating infrastructure beyond controlling pollution. The agency, admittingly, doesn't even have that expertise. I will not be surprised when this becomes a frog in a slowly boiling pot scenario, but on its own this decision isn't that troubling to me. 

[elfenix 34794]

15 minutes ago, Bateshorn said:

From my personal perspective, I hope this pushes Congress towards a ghg tax and stop trying to regulate carbon and getting to cute by half. 

better late than never but at this point we're going to need more than that. 

 

i wonder if all the olds in congress remember "BTU'd," or if their brains have melted away?

[elfenix 34794]

28 minutes ago, Js1 said:

Oh boy!

 

looking forward to "state courts can't decide state law" next term. 

[David Dennison 19571]

20 minutes ago, Pig Bellmont said:

It’s worse. This means a GOP state legislature can vote to send fake electors, despite losing the vote, and a state court couldn’t do anything about it. It’s paving the way for Trump’s coup plan to be successful in 2024

This country fought a civil war over slavery wrapped in the cloak of states' rights. States' rights lost. By even entertaining the independent state legislature doctrine, which would potentially put presidential elections in the hands of gerrymandered state legislatures, the Supreme Court is inching this country ever closer to armed conflict. 

Democrats need to wake the fuck up.

[Gengs1 2583]

1 minute ago, David Dennison said:

 

Democrats need to wake the fuck up.

dem leadership 

[Dahobbs 18427]

5 minutes ago, wildcat09 said:

You and Hobbs are forgetting that the major questions doctrine is made up nonsense with no basis in the text of the Constitution, or in history or anything but extremely recent (and clearly bullshit) precedent. You're imposing your own politics of "there's got to be some constraint on what the executive can claim Congress has delegated to it" onto their decision. It's not "wrong" in the sense that a reasonable policy argument could be made for why such a doctrine would be a good idea to have, but it's absolutely wrong in that it's simply not and has never been part of our actual law.

That's just like saying that "strict scrutiny" is made up non-sense that has no basis in the text of the Constitution. I think there is plenty of precedent that shows the judiciary can create new doctrines in analyzing whether a particular governmental action is consistent with Constitutional and statutory terms. As an example, look at preemption analysis to state law claims. No where in the Constitution does it say that preemption only applies when Congress either expressly preempts state laws or completely regulates a given area to leave no room for state laws. But, that is the system of analysis the judiciary has created in order to create reasonable guidance from a very short piece of text. 

[Dahobbs 18427]

7 minutes ago, Dahobbs said:

Eh, maybe. This decision may foreshadow that a result. But it doesn't announce it. The EPA regulating our mix of power generation is a bit of a mismatch of agency and objective. Congress didn't clearly, in my view, expand the EPA's authority to include regulating major aspects of power generating infrastructure beyond controlling pollution. The agency, admittingly, doesn't even have that expertise. I will not be surprised when this becomes a frog in a slowly boiling pot scenario, but on its own this decision isn't that troubling to me. 

fify myself. 

[Francisco 2.0 32621]

3 minutes ago, David Dennison said:

Democrats need to wake the fuck up.

And...do what, exactly?

The time for waking up was years ago, long before Trump ever decided to come down that escalator.

Mitch and the boys were playing a long game.  Dems were only worried about what they could see in front of their face.

[Goofyboy 3438]

It would be nice if they just decided to beat them at their own fucking game. Pack the courts with leftists. Play dirty. Fuck - do anything besides be door mats for the end of free and fair elections and the environment and womens rights…

[Gengs1 2583]

2 minutes ago, Francisco 2.0 said:

And...do what, exactly?

The time for waking up was years ago, long before Trump ever decided to come down that escalator.

Mitch and the boys were playing a long game.  Dems were only worried about what they could see in front of their face.

Dems worried what republicans would think of they did ANYTHING the republicans didn’t like 

[elfenix 34794]

6 minutes ago, Dahobbs said:

That's just like saying that "strict scrutiny" is made up non-sense that has no basis in the text of the Constitution.

i have no idea how strict scrutiny survives the 9th amendment. 

[MissingInAction 25608]

We should start burning down churches.

[Johnny Sack 8397]

17 hours ago, David Dennison said:

By a 5-4 party line vote.

The Republican Party, with assistance from the Supreme Court, has been conspicuously and systematically establishing minority rule in this country for over two decades.

It's an open question as to how long the majority will put up with it.

It was 7-2 on equal protection and 5 to 4 on remedy. 

[wildcat09 29601]

5 minutes ago, Dahobbs said:

That's just like saying that "strict scrutiny" is made up non-sense that has no basis in the text of the Constitution. I think there is plenty of precedent that shows the judiciary can create new doctrines in analyzing whether a particular governmental action is consistent with Constitutional and statutory terms. As an example, look at preemption analysis to state law claims. No where in the Constitution does it say that preemption only applies when Congress either expressly preempts state laws or completely regulates a given area to leave no room for state laws. But, that is the system of analysis the judiciary has created in order to create reasonable guidance from a very short piece of text. 

I agree with this and the concept of a major questions doctrine seems reasonable, though I really can’t think of a way to define its parameters clearly enough to actually be good to have. 

My biggest problem with this decision (aside from the problems you and Brisket have already covered) is that these supposed originalist and textualist justices who claim to abhor this type of behavior from courts are embracing it, and doing so for what are obviously just partisan political reasons and not anything remotely related to any real idea of the law.

[David Dennison 19571]

Just now, Francisco 2.0 said:

And...do what, exactly?

The time for waking up was years ago, long before Trump ever decided to come down that escalator.

Mitch and the boys were playing a long game.  Dems were only worried about what they could see in front of their face.

I really don't know. I would love for them to be as ruthless politically as the Republicans. No more let's all get along bullshit. That needs to be over yesterday.

They also need to do a better job of communicating how much of a threat radical Republicanism is to civil order.

 

[tx 3 putt 78790]

42 minutes ago, Js1 said:

Oh boy!

 

welp there goes voter’s rights 

[David Dennison 19571]

2 minutes ago, Johnny Sack said:

It was 7-2 on equal protection and 5 to 4 on remedy. 

Meaning it was a 5-4 party line vote to appoint W. president. 

That poisoned the United States' body politic and is leading us down a very dangerous path.

[Js1 87306]

1 minute ago, tx 3 putt said:

welp there goes voter’s rights 

More like, the right to vote. 

[GopherRock 1778]

7 minutes ago, Francisco 2.0 said:

And...do what, exactly?

A Judiciary Act that substantially expands the Supreme Court, as well as the rest of the federal bench.

[HornOnTheBayou 9069]

 

[tx 3 putt 78790]

Just now, Js1 said:

More like, the right to vote. 

It’s the only way a minority party can stay in power 

[David Dennison 19571]

Just now, Js1 said:

More like, the right to vote. 

Well, if it's not written in the Constitution . . . 

This simulation sucks.

[Pancho 46384]

43 minutes ago, Js1 said:

Oh boy!

 

Yup we’s fucked

 

[Johnny Sack 8397]

3 minutes ago, David Dennison said:

Meaning it was a 5-4 party line vote to appoint W. president. 

That poisoned the United States' body politic and is leading us down a very dangerous path.

If they could not use different and more liberal standards in blue counties, which is what the Democrats were trying to get away with, Gore loses.  7 justices said they could not use different standards.  That ended it.  The remedy that was 5-4 just hastened the end.

[The Hot Dog Buffet 1314]

5 minutes ago, Js1 said:

More like, the right to vote. 

Nah, you can still vote. It just won't count.

[Fudge Nuggets 19485]

1 hour ago, sidis said:

well i don't know about you guys...but i am super psyched to be living next to louisiana in an era in which there is no federal oversight or enforceable regulation in to what they can do to the air and water. 

You think Pasadena / Port Arthur / etc won't go full on "here's a double dose of cancer for you"?

[David Dennison 19571]

2 minutes ago, Johnny Sack said:

If they could not use different and more liberal standards in blue counties, which is what the Democrats were trying to get away with, Gore loses.  7 justices said they could not use different standards.  That ended it.  The remedy that was 5-4 just hastened the end.

George W. Bush was appointed president by the Supreme Court on a strictly party line vote.

That's gotten us to the most precarious political atmosphere since the Civil War.

 

[jimmyjazz 47349]

Alright, did any states go Trump in 2020 with a blue legislature?  I mean, if we're fighting fire with fire . . .

[Ghost of LL 15705]

1 hour ago, Bateshorn said:

My wife, who is a enviro attorney’s hot take is it’s bad for climate change, but they didn’t chuck Chevron. It prolly means they’ll pick and choose which regs they want to toss in the future through the shadow docket (enviro regs? Unconstitutional!  Safety regs for Airplanes? That’s okay.)

Chevron's dead.  

It's like in the Kennedy case from Monday.  It didn't say Lemon was overruled; it said Lemon had been "abandoned."  Really?  When was that?  

But that's what we're seeing here.  In the next term, you'll get an opinion saying Chevron has been abandoned.  And it'll cite this case and some of its shadow-docket bullshit.

And you're also right that it gives them huge leeway on what to toss and what to keep.  But I'd say beyond that, there is a lot of language in there that would imply that no agency should think it should undertake any new rulemaking going forward, no matter how circumstances may change (see, e.g., the discussion of the CDC's authority (or lack thereof) in light of a major pandemic).

1 hour ago, Js1 said:

Roberts and Kav join the liberals in ruling “Remain in Mexico” can be shut down 

That was what we call in the business a "bench slap" at the Fifth Circuit (and also to the district judge).

[tchookem 3988]

You think Pasadena / Port Arthur / etc won't go full on "here's a double dose of cancer for you"?

More splosions in Texas City!

[David Dennison 19571]

 

[Brisketexan 107046]

2 minutes ago, David Dennison said:

 

On this point, we agree.  Future scholars (probably from some other country, as I don't think we're going to end up with a vigorous, honest discussion of our legal system after the next decade or so) will absolutely look back on this SCOTUS term as one of the most destructive in American history.

But buck up....I'm sure the next term will be even WORSE.

[wildcat09 29601]

4 minutes ago, David Dennison said:

 

*Homer/Bart meme*

"This is the best SCOTUS term of the rest of your life!"

[Paper_jam 858]

If we get to a point where a state legislature sends electors that pick a candidate who didn't win the election, the people of said state need to burn it all down.

 

[wildcat09 29601]

1 minute ago, Paper_jam said:

If we get to a point where a state legislature sends electors that pick a candidate who didn't win the election, the people of said state need to burn it all down.

 

Anyone who would participate in that, from the state legislators to the electors they name, would need to be drawn and quartered.

[tx 3 putt 78790]

12 minutes ago, Brisketexan said:

On this point, we agree.  Future scholars (probably from some other country, as I don't think we're going to end up with a vigorous, honest discussion of our legal system after the next decade or so) will absolutely look back on this SCOTUS term as one of the most destructive in American history.

But buck up....I'm sure the next term will be even WORSE.

thomas is a man with a dream of tearing down this country and he finally got it. The sooner he’s burning in hell, the better 

Edited June 30, 2022 by tx 3 putt