“On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.
The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.
But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.
The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.””
…
“It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.
So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.
But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies.”
…
“Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.
For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.”
…
“Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.”
…
“the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.””
…
“early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.”
…
“As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?
The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.”
…
“If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.”
“It’s perhaps the harshest in a wave of state-level anti-trans legislation aimed at barring trans girls and women from playing girls’ and women’s scholastic sports. About 30 states have introduced anti-trans athlete bills this year, and two of those became law this month: Mississippi and Arkansas. Tennessee’s ban, meanwhile, is awaiting the governor’s signature. Idaho passed a similar law last year, which was later enjoined by a federal court.”
…
“science has found that trans girls who hormonally transition at younger ages do not necessarily have a “biological advantage” athletically. And none of it justifies banning middle school trans girls from the local girls’ soccer team.”
…
“An Associated Press investigation into these athletic bans found that most lawmakers supporting such bills cannot name a single trans athlete competing in their state. A New York Times report indicated that out of about 200,000 women taking part in NCAA women’s sports at a given time, about 50 are transgender.”
…
“Advocates say that laws that exclude and punish trans kids — and messaging that classifies young trans girls as “biological boys” — is scare-mongering and unfair, and only seeks to reinforce ugly stereotypes about trans girls and women to an uninformed public. It’s another attack on trans kids that potentially threatens not just their school life but also their relationship with their parents — which, advocates say, is ultimately the goal for anti-trans conservatives: forcing trans kids back into the closet.”
…
“Children frequently play coed sports until puberty begins, and only then does there begin to be a separation in athletic performance between boys and girls. The existence of girls like Walker, however, further complicates matters. She largely avoided male puberty to begin with, thanks to her middle school puberty blockers and hormonal transition. Taking a look at her slight physique would render absurd the idea that she’s some genetically giant super-athlete compared to her cis peers.”
…
“Even for trans women athletes, many experts agree that trans women at least lose some performance ability when they hormonally transition, even if it’s after puberty has been completed, rendering it unlikely that they would be able to keep up — or stay safe — competing against their cis male counterparts.
Estrogen is much less efficient at building and maintaining muscle than testosterone, and early research indicates that trans women lose significant strength through their transition-related hormone replacement therapy regimen. So for trans women athletes, that means they need to take longer to recover between workouts than they did before transition, causing muscle loss.
While some studies have suggested that trans women do retain at least some of their previous pure strength advantage even after a year on estrogen, with further drops past the one-year mark, how this exactly translates to more complicated athletic movements beyond pure strength and endurance tests remains to be proven.”
…
“Part of the problem on the anti-trans side is that they’re starting from the base assumption that trans women are men, and substitute cis male physical traits when discussing whether trans women may have competitive advantages. They’ll argue that men have bigger hearts and more lung capacity, or produce more red blood cells on average than cis women, and then assume trans women’s bodies would be the same.
But initial scientific findings don’t necessarily support that, according to Loughborough University PhD student Joanna Harper, who has spent the past decade researching trans athletes. Harper noted that a trans athlete she previously studied at Arizona State University saw the ejection fraction rate of her heart drop significantly after HRT, meaning less blood was pumped with each beat. “The heart itself might be the same, but the muscles may not work as well,” she told Vox. “And if the ejection fraction goes down, who cares about the size of the heart? It’s how much blood you can pump that matters.””
…
“Trans women were allowed to begin competing as women in the Olympics if they’d had bottom surgery beginning in 2004. The surgery requirement was lifted in 2016 and replaced by guidelines stating that trans women must lower their testosterone levels for an entire year before eligibility. Despite the more open stance, no openly trans woman has ever qualified to compete as a woman in the Olympics.”
…
“Sports — and, ultimately, being part of a team — are a normal part of kids’ socialization. Studies have shown that athletic participation provides all sorts of positive effects on children, from reduced rates of depression to positive physical health outcomes. But more importantly, high school and college sports are a common space for community-building. Small towns often gather at the local high school’s athletic events and socialize and build a common identity. By excluding trans girls from these spaces, it sends a clear message to all trans kids that they don’t belong.”
“The fight is over whether Connecticut’s towns and cities need to change the rules that dictate what types of homes can be built and where. Currently, it is illegal to build anything other than single-family homes in the majority of the state — over 90 percent of zoned land is set aside for single-family housing.
These homes are necessarily more expensive than other types of homes, like duplexes, multiplexes, townhomes, and apartments. There are also other rules such as the number of parking spaces you have to build per home, or restrictions on the height of your property, or bans on allowing homeowners to build a separate small structure in your backyard. All of these rules have the effect of fewer homes being built, even as demand continues to grow.”
…
“According to one measure by researchers at the University of Pennsylvania’s Wharton School, Connecticut has the 15th-most regulated residential building environments. In doing so, it has confined poorer people to small parts of the state and likely discouraged countless more from ever moving to the state.
Another measure, the Opportunity Atlas created by Harvard University researchers, maps opportunity in the state. The map of Connecticut (pictured below) shows a sea of blue with pockets of dark red. Residents in the blue counties can expect their children to grow up and make a good living. But the map also reveals the segregationist effects of localities’ zoning policies. Poverty is concentrated in a few tiny pockets, so much so that in some of the red areas, a child born there could expect to grow up and have their household earn less than a third of what a child in a nearby dark blue area would earn.
One clear example of this is the capital city of Hartford, which NBC Connecticut reports has a poverty rate of 31.2 percent, while the surrounding suburbs see a poverty rate of only 7.8 percent.”
…
“fewer homes but growing demand means higher prices for everyone.”
“In sharp contrast to today’s undocumented population, “illegal” European immigrants faced few repercussions. There was virtually no immigration enforcement infrastructure. If caught, few faced deportation. All of those who entered unlawfully before the 1940s were protected from deportation by statutes of limitations, and in the 1930s and 1940s, tens of thousands of unauthorized immigrants like Nora O’Donnell’s grandfather were given amnesty.[viii] The few not covered by a statute of limitations or amnesty had another protection: until 1976 the government rarely deported parents of US citizens.[ix] There were no immigrant restrictions on public benefits until the 1970s, and it wasn’t until 1986 that it became unlawful to hire an undocumented immigrant.
In sum, from the early 1900s through the 1960s, millions of predominantly white immigrants entered the country unlawfully, but faced virtually no threat of apprehension or deportation. Businesses lawfully employed these immigrants, who were eligible for public benefits when they fell on hard times.”
…
“[x] often in the context of racialized debates targeted mainly at Latinos. Researchers have documented how through the 1960s, racialized views of Mexicans shaped law and bureaucratic practice.[xi] Over the next decade, Congress: ended the Bracero program, which had allowed as many as 800,000 temporary migrants from Mexico annually to work mainly in agriculture; cut legal immigration from Mexico by 50%; and ended the long-standing practice that parents of US citizens wouldn’t be deported. Reducing lawful means of immigrating predictably led to a rise in unauthorized entries, which was met with calls for tougher enforcement.”
“We know the vaccines authorized in the US are extremely effective and safe — but not perfect — at preventing Covid-19 illness. Newer data suggests they are also very good (though also not perfect) at keeping people from getting infected, thus likely drastically reducing the chances they could spread it to others.
Even with the small risks of these “breakthrough infections,” there are much more pressing reasons to keep masking in public — especially indoors in places like gyms, stores, and airports — and, according to the new CDC guidance, in most outdoor gatherings as well. Masking remains one of the least intrusive interventions we can take to keep putting the brakes on Covid-19 spread.
From variant wild cards to protecting unvaccinated kids, the reasons we should keep masking in crowded public spaces at least into the summer are strong. We talked to experts to better understand them and to get a glimpse of when we might finally be able to leave our masks at home.”
…
“The majority of people in the US are still susceptible to infection from Covid-19. “There are folks around us who will not or cannot get the vaccine, and we have to keep thinking, as a community, of ways to protect them, too,””
…
“a subset of people — roughly 3 percent in the US — have compromised immune systems that might do a poor job of mounting a robust response to the vaccine, leaving them vulnerable to infection even after getting shots.
There are also some people who aren’t able to wear masks to protect themselves in public. This includes some adults and children with disabilities or rare health conditions, as well as babies and toddlers”
…
“Although the vaccines authorized for use in the US appear to be very effective against the variants that are circulating, it is possible future strains will be better at evading vaccine protection (as the B.1.351 variant, first detected in South Africa, is against the AstraZeneca/Oxford vaccine). Vaccine companies are working to keep pace with variants, testing their vaccines against them and formulating potential boosters. But, says Guthrie, “it may be a bit of a game of whack-a-mole as new variants come up.””
…
““These variants — especially ones that have mutations that make them more transmissible — can pop up and then spread quite quickly,” Guthrie says. “If you combine that with a variant that could evade the current vaccines, you’re not going to get a lot of advance warning.” Which means a widespread outbreak, including some people who had already gotten their shots, could get going before we were able to contain it.
Masking can not only prevent a new variant from spreading but could also help prevent new variants from emerging, as the more people the virus infects, the greater the opportunity it has to mutate.”
…
“Even if we can’t drop our masks indoors for a little while longer, outdoors is a different story. The rates of public outdoor transmission of Covid-19 are incredibly low, and most known cases of outdoor infection spread have occurred from long conversations, yelling, or exercising together.”
“For 12 years, the 25 residents of a “tiny house” community known as Walden EcoVillage managed to live in peace with both nature and local zoning officials in the town of Peterborough, New Hampshire.
That peace ended on December 15, when the city ordered the eviction of all the community’s residents, whose diminutive dwellings, many of which were less than 400 square feet, offered an inexpensive but technically illegal housing option. An application from the village’s owner to add more units to the property had alerted planning officials to the fact that its cottages and casitas were not permitted as full-time residences. A site visit also discovered a host of building code violations, including supposedly dangerous wiring.”
“The National Flood Insurance Program (NFIP) run by the Federal Emergency Management Agency (FEMA) is $20.5 billion in the hole, even after Congress canceled $16 billion in debt in 2017. This financial shortfall is largely because the program does not charge nearly enough in premiums to pay for the flood damage on the properties it insures. For decades, taxpayer bailouts of the NFIP have enabled people to live and build in flood-prone areas instead of bearing the risks themselves.
In order to address this problem, the NFIP has been working on its new Risk Rating 2.0 initiative, with the aim of charging premiums that more accurately reflect the unique flooding risks of individual properties. The agency had planned to release its updated rates later this year.
Not so fast, says Senate Majority Leader Chuck Schumer (D–N.Y.). The senator’s office recently informed FEMA that adjusted premiums could have a “severe impact” on homeowners, and urged Congress and the Biden administration to work together toward “affordable protection” for flood-prone communities.”
…
“lots of beachfront dwellers in New York (and elsewhere) have been “unfairly” taking advantage of taxpayers. A recent study by the nonprofit research group First Street Foundation calculates that the average estimated annual loss for each of the 4.3 million properties most at risk of flooding is $4,419, whereas NFIP premiums average $981. In other words, their flood insurance premiums would have to increase 4.5 times over their current rates to fairly cover the flooding risks to these properties.”
…
“as a result of “direct government provision of subsidized insurance, private markets no longer generate price signals regarding the cost of living in severe-weather regions.” Suppressing the true cost of insurance encourages “private parties to (rationally) assume excessive risk, and dump the cost of living in the path of storms on others. Indeed, much of the development of storm-stricken coastal areas is due to insurance subsidies, and would likely not have happened at the same magnitude otherwise.””
“Los Angeles politicians’ plan to preserve affordable housing might just end developers’ incentive to ever build more of the stuff in the city.
Last week, the Los Angeles City Council passed a resolution directing city agencies to explore options for freezing rents at privately owned buildings with expiring affordability covenants. These covenants require building owners to keep their rents at below-market rates for a specified period of time, typically 30 to 55 years, in exchange for various government subsidies—including tax credits, low-interest loans, and relief from zoning restrictions.
Covenants covering thousands of these units are set to expire within the next few years, allowing landlords to raise rents to market rate. Lower-income tenants benefiting from affordability restrictions could be faced with unaffordable rent increases.”
…
“A rent freeze would be a pretty radical move, particularly when compared to other policies people have floated to preserve affordability covenants. That California Housing Partnership report recommended more subsidies and tax credits to preserve affordable units.
HCIDLA has proposed forgiving building owners’ debt they owe the city in exchange for extending affordability covenants, or, in the case of debt-free buildings, subsidizing owners for forgoing market-rate rents.
All those ideas involve compensating property owners for voluntarily keeping their rents low. Cedillo’s proposal would require them to eat the entire cost of maintaining below-market-rate rents.
That would be a huge disincentive for anyone to ever participate in future affordable housing programs, says Dan Yukelson, executive director of the Apartment Association of Greater Los Angeles.”