The SCOTUS theme for today: who gets to decide what?
SCOTUS handed down two rulings today that seem to clash politically: one against the administration and one for the administration. But otherwise they actually mesh, if you see them as SCOTUS deciding what branch of government gets to decide what.
In West Virginia v. EPA, the Court was asked to decide this question:
In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy-without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?
In other words, how far-reaching was the power given the agency under this act of Congress? Is it the authority to gut a hugely important industry? The Court said this (6-3):
Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.
So during the Obama administration there was a shift in the EPA from reducing pollution by clean operation to reducing pollution by reducing production of electricity itself. That’s a shift too far, says the Court:
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.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed…
Congress needs to legislate and not allow unelected agency administrators to decide huge matters of national policy. And that’s an extremely important statement for the Court to make.
Then there’s the Court’s decision that Biden could fail to abide by “remain in Mexico,” thus reversing a policy of Trump’s:
Roberts wrote a long-winded opinion, but Kavanaugh’s stuck out to me.
The laws we have only give DHS two options, Kavaugh pointed out. DHS can “grant noncitizens parole into the United States if parole provides a ‘significant public benefit.’” DHS can also “choose to return noncitizens to Mexico.”
“In general, when there is insufficient detention capacity, both the parole option and the return-to-Mexico option are legally permissible options under the immigration statutes,” wrote Kavanaugh. “As the recent history illustrates, every President since the late 1990s has employed the parole option, and President Trump also employed the return-to-Mexico option for a relatively small group of noncitizens. Because the immigration statutes afford substantial discretion to the Executive, different Presidents may exercise that discretion differently.
In other words, this is Congress’ and a president’s call, and Biden’s decision was within the parameters of the act of Congress involved here. I suppose if Congress wants to change that, it can pass a different law.
The decision by SCOTUS on “Remain in Mexico” is indefensible, and Roberts proves himself, once again, to be a snake. That some recent judgements from the highest court have been reasonable in no way whatsoever mitigates against the unfortunate fact that (aside from Alito and Thomas), the Supremes seem incapable of acting fully rationally. Trump’s choices (thanks to The Federalist Society) leave much to be desired.
I started to say something then thought better of it. We can’t agree with everything the Court does. Biden could of course keep the program in place or not. Even more pictures of streams of people crossing into the US might not be good before the mid terms, but who knows.
Upholding the Constitution is what the SC is supposed to do. And they did it.
Huh, a 5-4 decision on remain in Mexico. As I’m typing a pundit is saying the remain in Mexico policy is a national security issue and the SC got it wrong. Yes, it is a national security issue, but who is supposed to be in charge of such things? The president. The trouble is that we have a president who doesn’t care about national security and integrity. That’s not the SC’s problem to legislate. Although Sotomayor doesn’t mind legislating.
Well, hooray for the Court on the EPA over reach. I wish that the decision went further and mandated some limits on how much authority can be delegated for bureaucratic entities to create regulations.
The lazy politicians should be required to write their laws with some specificity. The negligence of Congress in enacting flawed legislation, and the Presidents who sign those bills into law, have created a de facto Bureaucratic Despotism.
On the other hand, the logic of approving any procedures that allow invaders to enter the country willy nilly, and then disappear after apprehension, simply escapes me.
I think the idea behind the ‘remain in Mexico’ decision is that it allows the next President to reinstate it or come up with a different, possibly better policy, whereas if the SC had ruled that Biden had to retain the policy, it would (as TommyJay pointed out) have put the SC in charge of the border, rather than whatever Presidential administration had been elected.
Looking at the problem from a different angle, if the SC mandated that the Biden administration follow the Trump administration’s border policies, it could also have mandated that the Trump administration follow the Obama administration’s border policies. The decision makes sense to me from that perspective – it leaves the decision up to elected officials.
Many years ago, when I was in college, I had a classmate from Canada, He had a question about his visa, so he went to some office of the American Government to ask about it. The person with whom he spoke told him to come with them. They got in the car. The bureaucrat drove my friend across the Ambassador Bridge and dropped him off in Canada.
Sigh…
Regarding EPA and caps and whatnot: Government bureaucrats live in a world of make-believe. They are unencumbered by the laws of physics. They demand that certain things happen, and expect it to be possible, regardless of what the laws of physics may involve. Soon we shall all be driving “Smart Cars” with ranges of maybe fifty miles…
Crosley made a car decades ago that got fifty miles per gallon! It seated two people, only held two gallons of gas, and you had to use a dipstick to check your fuel level. If you got hit, you were toast. But by golly, it got GREAT mileage! (I THINK it might have been the Farm-O-Road. It looked like that.)
Regarding comments with respect to handling of illegal immigrants, there is a constitutional requirement that pertains.
“Article 4 Section 4 of the U.S. Constitution states: The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”
SCOTUS should have judged the processing of illegal immigrants (invaders) in the context of this constitutional mandate to protect every state against invasion.
Texas would probably agree that the President is negligent in this regard; and should be required to perform his constitutionally mandated duty.
The SC ruling in West Virginia v. EPA is potentially of great significance but only if the policies these agencies have already put in place are challenged in the courts.
The SC ruling that Biden can rescind Trump’s ‘Remain in Mexico’ policy is technically correct. Those Congressional representatives who refuse to impeach and convict Biden for “High Crimes and Misdemeanors” are guilty of malfeasance themselves.
But the real problem is our fellow citizens who are aiding and abetting America’s destruction.
SCOTUS today agreed to hear another very important case.
SCOTUS may be set to issue a ruling that validates 2020 election steal claims
See,
See,
https://www.scotusblog.com/2022/06/justices-will-hear-case-that-tests-power-of-state-legislatures-to-set-rules-for-federal-elections/
The author of the article wrote (emphasis added), “The Supreme Court will take up a case from North Carolina next term that could upend federal elections by eliminating virtually all oversight of those elections by state courts.”
I think the author’s description is a bit overwrought. I think the issue is whether a court can set election rules, as opposed to determining whether or not election rules set by a state legislature violate a relevant constitutional prohibition.
In any event, this could be a very important case. With the correct ruling from SCOTUS, sweetheart stipulated settlements setting up new election rules will not be approvable.
My biggest problem with Biden v Texas is now explain SCOTUS ruling overturning Trump’s executive order on Dreamers.
The EPA case is far more important. It’s a major blow against the “pen and phone” style of presidential governance. The court is basically saying that, unless it’s clear that Congress intended to delegate authority to an agency to craft and impose a new and far-reaching policy on the country, it’s a violation of separation of powers to do this via mere regulation. So a president can’t simply order, but needs to get congressional approval to, in this case, dictate that electrical power generating companies switch “x” percent of their output from coal to renewable sources. Even if the text of the 1970 Clean Air Act can be literally read to give the EPA the authority to force electric companies to reduce carbon dioxide, separation of powers requires the court to insist on a clear delegation of authority to the agency if the agency’s regulation has some new “major question” policy implications.
As for the “remain in Mexico” case, I think Roberts et al may have been right in not wanting to dictate to the president how to respond to the lack of sufficient detention facilities for illegal crossers. The WH was claiming that, for reasons of foreign policy (always regarded as the exclusive province of the executive), they don’t want to force illegals to remain in Mexico. The statute literally says the president “may” — i.e., is not required to — dump illegals back in Mexico, and that’s what the court is hanging its hat on. The dissent argues that, if the president doesn’t force the illegals to remain in Mexico, his only other statutory choices are to detail them or parole them into the U.S. on a case-by-case basis. I guess it’s understood that the way illegals are actually being released is not “case-by-case” parole, but something more . . . wholesale. But it’s also the case that there isn’t nearly enough capacity at detention facilities to house the illegals who are coming across, so that option isn’t great either. I think the majority arguably was correct in perceiving this primarily as a political/policy problem that Congress and the president need to work out.
Leland:
Again, the DREAMER decision had to do with the reading of the statute itself and whether the Trump administration complied with some of its requirements. The consistency is that Congress legislates on immigration, and as long as presidents comply with what is written in the legislation they have discretion. It was a decision based on procedure:
CO2 is not a pollutant, it is a nutrient. Food for plants.
Before the Civil War, immigration was the responsibilty of the states. My GGG Grandfather became a citizen of Virginia in 1844 but swearing an oath in the state court. There was no oath to the constitution.
CO2 may prove itself the basis of the fuel of future. By the Sabatier process CO2 can be turned into methane, used to power any engines from small motors to trucks to rockets. Is methane as good as gasoline? No, of course not, but the apparent side effects are much less.
Without all the formulae, here is the money quote from Wiki: “ NASA is using the Sabatier reaction to recover water from exhaled carbon dioxide and the hydrogen previously discarded from electrolysis on the International Space Station and possibly for future missions.The other resulting chemical, methane, is released into space. As half of the input hydrogen becomes wasted as methane, additional hydrogen is supplied from Earth to make up the difference. However, this creates a nearly-closed cycle between water, oxygen, and carbon dioxide which only requires a relatively modest amount of imported hydrogen to maintain.”
And hydrogen can be imported from electrolyzed water on Earth or Mars—and water is common in space. It’s found even on the moon.
But here’s another key point: Sabatier + RWGS (the name of the latter part of the process) may be done in the same reactor.
I’ve read some commentary suggesting that SCOTUS may have left the remain-in-Mexico recission vulnerable to the same challenge that killed Trump’s DACA reversal – i.e. a failure to comply with the Administrative Procedures Act (APA). Apparently, the decision referred to the remain-in-Mexico recission as the kind of administrative action that is subject to the APA.
I really don’t know, and the APA is a very complicated statute. I also never understood how failing to comply with the APA could thwart Trump when he was rescinding a policy that was also enacted without complying with the APA. As I recall, DACA was implemented using one of Obama’s famous memos from a bureaucrat. (Instead of having Trump reverse DACA, I wonder if it should have just been challenged for failing to comply with the APA?)
Robert Shotzberger,
I don’t know where you’ve been for the past 30+ years since Jim Hansen made his testimony to Congress. Since that moment, it’s a proven FACT that CO2 is a pollutant. Even more so that it then morphed into the horrible “carbon” as a pollutant. Sheesh, some people just can’t be bothered to learn Science! (TM).
/sarc off
Guns, abortion, God, (the EPA and bureaucrats ….)! The smelly people are running the SCOTUS. Burn it down! (NOT)
Slowly all that Biden blames on Trump becomes his. By fighting all the way to the Supreme Court on “remain in Mexico” the border crisis is now undeniably his.