For anyone curious, this bill is fighting against the conservative SCOTUS decision that basically said fossil fuel and other companies don’t have to listen to the EPA or follow environmental regulations if the company has a “reasonable”(undefined) argument against said regulation.
So this law should get made. Get made good.
Regulations are “unconstitutional”? Hmmmmmmm 🤔 Is SCOTUS bound by anything? Seems like they can rule however they like.
I think their argument is more that the agencies aren’t allowed to be the ones to say how a law is applied as far as regulations go. If a regulation is vague enough the EPA isn’t allowed to clarify anymore, it needs to go to a (more than likely rubber stamp) court where the judges decide, instead of, you know, anyone who would actually have expertise… It’s legally “reasonable” but practically insane.
Why aren’t the bodies allowed to say how relevant laws are applied? Isn’t the whole point behind regulatory bodies that the government will grant regulators certain powers with legislation?
I’m not a legal expert, but in Australia at least there are a bunch of regulators that work to legislation, but they totally come up with extra clarifications and rules themselves within the powers they’ve been granted, and you are obligated to follow those rules.
For example: the fair work commission in Australia sets the minimum wage every year, no legislation required. Employers can’t just decide they’re unreasonable and not follow them, unless they want to be taken to court (or go to jail, in certain states like Victoria).
Now, I have no idea what the laws are that give the US EPA their powers, but either SCOTUS is totally out of line here, or the legislation sucks.
The (bullshit) scotus argument is that congress can’t grant decision powers to federal agencies cause hurrdurr constitution.
Basically, for ~40 years we’ve run on a SCOTUS decision referred to as the “Chevron Decision.” What that did is direct federal courts to defer to agencies on interpretations of relevant laws and statutes, because federal courts were being bogged down by every. little. bit. of. minutiae. around the practical application of a bills intention.“Agency says brown, interested party says black, BOOM LAWSUIT” is an exaggeration but not by much. Instead, Chevron gives agencies the room for experts in the field to draft appropriate regulations etc in service of congress’ bills. “Agency says brown, interested party says black, well too bad the experts say brown is the best choice.” Can’t tie them up in court over everything.
Now, with Chevron overturned, Republicans can start tying everything they dont like up in court again. Plus, with the hyper conservative activist SCOTUS judges, now they can run any regulation or policy straight up the appeal ladder to have them all ruled “unconstitutional” with only the occasional less important burner case turned down in a halfass attempt to look “impartial”
Thanks for the explanation! And boy, does that sound broken.
Breaking the system is the goal of the federalist society (which selected them recent conservative group of judges in the SCOTUS, and many lower courts).
Exactly, it allowed Congress to get a say, but they had to override it.
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SCOTUS is unchecked by the rest of the federal government. The only thing that would limit their power is a constitutional amendment, which requires 38 states to individually ratify it at the level of their state governments, not their federal congresspeople.
There is literally no way for congress to affect the supreme court once it has 9 justices, or contradict its rulings on laws they call “unconstitutional”, short of impeaching supreme court justices or packing the court with more than 9 justices. Once enough of the court is full of fascists or enablers, it’s EXTREMELY hard to escape fascism without a constitutional convention.
You could instruct the federal agencies to ignore court rulings, effectively undoing Marbury vrs Madison.
That’s a constitutional crisis, but what is the court gonna do? Call the FBI? Send in the military?
You can ask the Cherokee people what the court does with an uncooperative federal government, but you won’t find any in Georgia.
Maybe that’s just fascism with our side in charge though.
Yeah unfortunately once fascism sets in there’s literally no way to get rid of it without using more fascism or violence. And considering that fascism necessarily requires the threat of violence, that previous statement can be simplified to “Fascism can only be defeated with violence”
Is SCOTUS bound by anything?
flipping open my Lockean theory of self-governance
Strictly speaking, the power of government is in its ability to achieve (relatively) peaceful compliance. The SCOTUS decision creates an opportunity for individuals to behave in defiance of the written law with a certain fearlessness. A President can go full Andrew Jackson and tell the judges to enforce that decision, but he’s still got to command a bureaucracy full of people who can be swayed in the other direction.
What happens to a regulation that nobody is willing to enforce? What happens to a federal regulation that runs afoul of state law, in a district where municipal/state law enforcement will enthusiastically arrest and local DAs prosecute a federal agent?
I would say that’s the real power of the SCOTUS. Opening the legal door for disobedience and negligence at the federal level, while state-level revolt occurs downstream.
In theory that was supposed to be the strength of SCOTUS, that being secure in their employment for life (or until retirement), they had no incentive to judge along party lines for fear of future prospects. However, we’ve seen that judges can still be both very partisan and entirely unqualified and we can now do nothing to remove them. Turns out bribery and threats still work on them
The Loper Bright ruling was that when taken on appeal that the courts no longer have to accept a reasonable agency interpretation over a reasonable (or more reasonable) interpretation by the other party.
And the rulings isn’t just for the EPA but all other federal agencies like the IRS, ICE, and the FDA. This bill is a double edged sword depending on who has the executive seat.
There’s at least a possibility of the executive having enough expertise to regulate reasonably. The courts don’t have the resources, but they’ve grabbed that power to themselves.
I mean that power was there since article 3 got drafted, and reaffirmed by the text of the APA.
The issue is the legislature not being able to pass laws due to the filibuster. This has lead to agencies being forced to take up their own interpretations to adapt language beyond it’s original meaning to attempt to complete their goals, like w/ the Loper Bright case.
to adapt language beyond it’s original meaning
If the executive’s rules leading to Loper Bright were not reasonable, the court wouldn’t have had a reason to overturn Chevron in order to decide against it.
Edit: the fact that court first wisely delegated the power to set regulatory rules doesn’t change the fact that they unwisely took it back.
I don’t think for the court it was an issue of making wise policy choices but of who had what authority, and what did the law say about it. The court simply didn’t have anything enabling them to delegate their powers in the Chevron case.
The separation of powers is core to the structure of our government, delegating powers onto other branches nullifies that. Hence the non delegation doctrine. Perhaps it [Chevron] may be good policy but it simply isn’t how our government is structured.
The court simply didn’t have anything enabling them to delegate their powers in the Chevron case.
They made up presidential immunity a few days later, then gave themselves control over it.
The court has a long tradition of deferring to the elected branches on matters of policy. This is based on the principal that voters should have a say. If a rule is reasonable under existing law, then changing it is properly the work of the legislature.
This bill is a double edged sword depending on who has the executive seat.
Not at all. It gives substantial power to the lower courts and strips it from the executive’s cabinet secretaries.
For real. The regulations are the “reasonable” standards. If you can’t meet the bare minimum you can fuck off.
Basically agencies were given power unchecked without passing any laws giving them that power. Supreme court decision was correct. Congress needs to get off their butts and get laws passed if they want them so bad, and stop relying on shaky historical precedents.
Kind of hard to pass bills when one political party is dedicated to nothing but corruption and obstruction but ok.
That’s fine, that’s why state and local governments exist, to implement what can’t be decided on nationally.
I honestly agree with the decision in a vacuum, but in reality I can’t help but feel the decision was made very much with corporate interests in mind. Yeah congress should’ve gotten their ducks in a row long before now, but the real winner here is corporations, not constituents.
Great, now do Citizens United, Trump v US, Roe and maybe try Dred Scott again but where corporations don’t have all the same rights as people and can’t be criminally prosecuted.
And reverse southern pacific vs santa clara and end corporate personhood
Let’s fucking go!
The courts kind of already denying the authority of the legislature on this. These agencies were created and given authority by congress already.
Yeah, they’ve gotten to the point of saying the legislature cannot delegate it’s authority. If it stands it functionally makes modern government impossible. If Congress cannot delegate to the executive, and it cannot take on executive style decision like the Westminster system, the government just cannot function.
Let SCOTUS enforce it. Why anyone still listens to that nut job chorus is beyond me.
They won’t have to. Lower courts do it.
Whats going to happen is that every time a corporation doesn’t like a regulation, they will sue to stop it. If possible in the specific case, they will shop for the right circuit court that’s stuffed with judges favorable to them. The regulation will be stopped from taking hold while the case is in process. The federal bench is already overloaded, so this will take years. The corp will continue as they were in the meantime.
Even worse, a corp can now bring up cases against old regulations that started affecting them. An old corp getting into a new area, or a spinoff subsidiary taking their old business, could challenge any regulation that suddenly affects them.
This isn’t like, say, school integration, where the President helps out the enforcement by sending the National Guard. Everything happens within the courts, plus the agencies respecting a court ordered stop like they always have.
They overturned the courts previous decision. Technically it wasn’t a law before, it just was heavily implied (as in Congress specifically left things vague bc they wanted federal agencies to fill in the blanks in accordance to the Chevron doctrine).
Basically, there wasn’t any part that was unconstitutional, they just said the court was overstepping their boundaries when they “created” the Chevron doctrine.
Edit: please read the comment below, it seems like my understanding wasn’t quite right
The court basically said it was a separation of powers issue. The basic powers of the branches are:
- The Legislative (Congress) creates laws
- The Executive (President) actually puts those laws into action (they are “executed” by this aptly named branch)
- The Judicial (courts) interpret legality of the actions of the Executive branch based on the wording of the laws passed by Congress, and the constitutionality of those laws (that is, if the law itself is even legal to be enforced)
The Chevron Deference doctrine was the courts saying “Congress occasionally writes laws vaguely and we don’t have expertise on every subject matter, so we are going to defer the decision-making of what exactly the law means to actual experts in the Executive branch.” Congress has written laws using this logic, intentionally granting power to the Executive branch that would otherwise reside with Congress (i.e. Congress says “how much of X particulate in the air is too much? We could write a specific law stating that 500 ppm is too much, but it’s a lot of work to do that for every particulate, and the science gets updated over time, so we’ll just tell the Executive to place ‘reasonable limits’ and call it a day.”)
Now the Court has said “That power you’ve ceded to the Executive branch? That should be ours because it’s our job to interpret what laws mean. We now decide how much of X particulate is too much, even when we mix it up with Y particulate.”
It’s a blatant power grab by the Court and a separation of powers issue. Congress SHOULD be able to remedy it by specifying that this decision-making power should reside with the Executive branch and the Judiciary won’t be able to say “no mine”. I mean, this Court WILL, but a legitimate Court wouldn’t.
Out of curiosity, what would stop SCOTUS being like “Nah, this law goes against the constitution”?
It’s my understanding that SCOTUS has the power to repeal laws. Wouldn’t the only real way to codify would to put it in the constitution?
Until SCOTUS declares amendments to the constitution to be unconstitutional.
SCOTUS “Mumble, mumble…found fathers…mumble, mumble, clearly unconstitutional…mumble, mumble, amendment not ratified correctly.”
Here’s my understanding as a layman, please correct me if I’m wrong.
SCOTUS could block the creation of a law if it was deemed unconstitutional, but even with a conservative SCOTUS, it’s unlikely they would in this case. As in many cases, SCOTUS didn’t overturn a law here, but rather changed their decision on the interpretation of the law, specifically the Administrative Procedure Act. If congress passes a law that explicitly delegates certain powers to agencies, or codifies regulations that had previously been defined by an agency, that would be harder to fight since the APA, as far as I can tell, does not prohibit it. Warren’s bill is basically saying “if we can’t implicitly delegate power to agencies to create regulations, we should at least be forced to quickly review suggested regulations to prevent them from getting stuck in congress.”
Again, this is just my understanding as a layman. IANAL
There was the Voting Rights Act case, Shelby County v. Holder. A case in which SCOTUS struck a provision in the Voting Rights Act as they declared it was unconstitutional. If you can declare a provision unconstitutional, what would stop SCOTUS from declaring an entire law unconstitutional?
We’ve already seen a SCOTUS decide it can do anything it wants.
Again, they can, but it’s less likely. It really depends on how much the genuine threat of civil unrest and violence compares against whatever benefit they get from voting a certain way (which, in perfect world, would be nothing).
Truthfully I don’t think this particular ruling was incorrect or outside the reasonable extent of their powers. Do I think the timing of it was motivated by corporate and political greed? Absolutely. It’s abundantly clear that the decision, popular among conservatives, was meant to serve as a Trump “win” based on the justices he put in place (again, disturbingly contrary to the intended purpose of the SCOTUS). It’s also a potentially dangerous decision to make without any time allotted to get critical regulations codified by congress.
That all being said, while I in no way trust in the impartiality of the current SCOTUS, I do think repealing a law without fairly universal bipartisan support is a decent bit more extreme than what they did here. I think there needs to be a balance between genuine, concerning possibilities and doom-and-gloom panic.
They didn’t rule it unconstitutional, they ruled it incompatible with the 1946 Administrative Procedure Act. So the law could change it.
Granted, they could later try to rule it unconstitutional, but it would kill Looper Bright.
With Marbury v Madison, the court gave itself the authority to interpret the constitution and the laws that congress enacts and the president enforces. These are statutory laws.
The other kind of law is court precedent. It is the law that the court creates based in the cases that come before it. It is inextricably linked to statutory law. Of course the highest court can overturn the law of lower courts or its own decisions.
Yes, the court can strike down laws.
The only way to get around the court is to amend the constitution itself. When amending, the language should be plain and clear so that SCOTUS cannot misinterpret it. Though there are several amendments that have been interpreted various ways over time.
Amending the constitution is a difficult process because it requires a lot of agreement between the members of congress/ senators and the states. See article V of the constitution.
The only way to get around the court is to amend the constitution itself.
That’s not actually the case. The Constitution says this about the court system.
Article III - Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Emphasis mine. The inferior courts have jurisdiction over all matters other than “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” For those, SCOTUS has original jurisdiction. SCOTUS handles appeals to the judgements of the inferior courts “with such exceptions, and under such regulations as the Congress shall make.”
We do not need to amend the constitution to rein in SCOTUS. Congress, under the this article of the constitution, Congress has the authority to create legislation that limits the power of the supreme court on all matters other than “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” Congress can increase the size of the court allowing the current president to add judges. They can add term limits and other limits to SCOTUS. The problem is that one party doesn’t want to fix the problem and that party is running the House and obstructing the Senate thanks to the filibuster rule. If we had a functioning Congress, we could pass regulations forcing the justices to abide by ethics rules. We could make it illegal for justices to accept gifts from billionaires.
Sadly, this will not happen without a Democratic controlled House and a Senate with at lease 60 actual Democratic Senators, and a Democrat in the White House. Still far more likely than a Constitutional Amendment, though.
There’s another built in way for Congress and the President to get around SCOTUS. Just ignore the ruling. The most permanent way is an amendment but ignoring it and enforcing the law anyways does work. For example Banks will freeze accounts if the regulator tells them they have to. They aren’t going to make a principled stand for you.
If a regulator enforces a law against you that the court has deemed unconstitutional, you can sue the regulator for damages with the expectation that the court will be on your side.
The more obvious “built in” option is for the president to pack the court.
The US Marshals enforce court orders. The judges are powerless on their own and that’s by design.
If a portion of the government wholly stops listening to a part of the government that has authority over it, they call it a coup.
Nah it’s just a Constitutional Crisis. But we’ve been through this drill before. As long as you only ignore one or two key rulings it’s pretty mild.
Our branches of government are supposed to keep each other from going too far. It’s literally in the system design documents.
… Are we suddenly going to start fighting the supreme Court? Finally? Finally?
Approved.
