{"id":5073,"date":"2021-04-29T20:09:52","date_gmt":"2021-04-29T20:09:52","guid":{"rendered":"http:\/\/lonecandle.com\/?p=5073"},"modified":"2021-04-29T20:09:52","modified_gmt":"2021-04-29T20:09:52","slug":"the-supreme-courts-coming-war-with-joe-biden-explained","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=5073","title":{"rendered":"The Supreme Court\u2019s coming war with Joe Biden, explained"},"content":{"rendered":"\n

\n\n“On February 9, 2016 \u2014 the last Tuesday of Scalia\u2019s life \u2014 the Supreme Court handed down an unexpected order<\/a> announcing a stay of the Environmental Protection Agency\u2019s carbon emissions rules for manypower 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\u2019s 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<\/a> from where they were in 2005.   <\/p>\n\n\n\n

But the Clean Power Plan never took effect. Though the Supreme Court\u2019s order halting the plan was temporary, Donald Trump\u2019s 2016 victory all but ensured that itwould not be revived. Even if the Trump administration hadn\u2019t replaced this Obama-era policy with a significantly weaker rule<\/a>, the appointment of Neil Gorsuch to fill Scalia\u2019s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.  <\/p>\n\n\n\n

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\u2019s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies\u2019 power to regulate. As Stephen Bannon, then the White House\u2019s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration\u2019s primary goals would be \u201cdeconstruction of the administrative state<\/a>.\u201d”   <\/p>\n\n\n\n

…
“It wasn\u2019t always this way. In the late 1980s, Justice Scalia was one of the Court\u2019s staunchest defenders of a strong administrative state<\/a>. 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 \u2014 by winning elections.<\/p>\n\n\n\n

So conservatives benefited from court decisions that gavethe Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.<\/p>\n\n\n\n

But the right\u2019s approach to federal agencies shifted drastically during the Obama administration. With the GOP\u2019s 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\u2019s power to strike down new rules pushed by federal agencies.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“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.<\/p>\n\n\n\n

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.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“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 \u2014 goals such as ensuring that power plants use the best emission reduction technology available \u2014 are still set by the people\u2019s 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.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“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<\/a>, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies\u2019 ability to regulate \u201cpermit 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\u2019 design.\u201d”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“early American lawmakers \u2014 many of whom were the same people who drafted the Constitution \u2014 delegated tremendous power to executive branch officials<\/a>.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“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<\/em> opinion, the Court is shifting power to itself. What does it mean for a statute to be \u201csufficiently definite and precise\u201d that the public can \u201cascertain whether Congress\u2019s guidance has been followed\u201d?<\/p>\n\n\n\n

The answer is that the courts \u2014 and, ultimately, the Supreme Court \u2014 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\u2019s power to delegate authority.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“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.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/22276279\/supreme-court-war-joe-biden-agency-regulation-administrative-neil-gorsuch-epa-nondelegation<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“On February 9, 2016 \u2014 the last Tuesday of Scalia\u2019s life \u2014 the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency\u2019s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.<\/p>\n

The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration\u2019s 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. <\/p>\n

But the Clean Power Plan never took effect. Though the Supreme Court\u2019s order halting the plan was temporary, Donald Trump\u2019s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn\u2019t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia\u2019s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance. <\/p>\n

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\u2019s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies\u2019 power to regulate. As Stephen Bannon, then the White House\u2019s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration\u2019s primary goals would be \u201cdeconstruction of the administrative state.\u201d” <\/p>\n

…<\/p>\n

“It wasn\u2019t always this way. In the late 1980s, Justice Scalia was one of the Court\u2019s 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 \u2014 by winning elections.
\nSo 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.<\/p>\n

But the right\u2019s approach to federal agencies shifted drastically during the Obama administration. With the GOP\u2019s 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\u2019s power to strike down new rules pushed by federal agencies.”<\/p>\n

…<\/p>\n

“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.<\/p>\n

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.”<\/p>\n

…<\/p>\n

“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 \u2014 goals such as ensuring that power plants use the best emission reduction technology available \u2014 are still set by the people\u2019s 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.”<\/p>\n

…<\/p>\n

“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\u2019 ability to regulate \u201cpermit 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\u2019 design.\u201d”<\/p>\n

…<\/p>\n

“early American lawmakers \u2014 many of whom were the same people who drafted the Constitution \u2014 delegated tremendous power to executive branch officials.”<\/p>\n

…<\/p>\n

“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 \u201csufficiently definite and precise\u201d that the public can \u201cascertain whether Congress\u2019s guidance has been followed\u201d?<\/p>\n

The answer is that the courts \u2014 and, ultimately, the Supreme Court \u2014 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\u2019s power to delegate authority.”<\/p>\n

…<\/p>\n

“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.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[780,236,551,528],"class_list":["post-5073","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-joe-biden","tag-regulation","tag-regulations","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/5073","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5073"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/5073\/revisions"}],"predecessor-version":[{"id":5074,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/5073\/revisions\/5074"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5073"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5073"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5073"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}