That is incorrect. Congress cannot broadly delegate authority to make rules with the force of law on the executive branch. Even liberals begrudgingly accept separation of powers.
Regulatory agencies exist based on the theory that Congress can leave it to agencies to "fill in the details" of a law as part of the executive discretion about how to enforce the law. In the Clean Air Act, Congress gave the EPA authority to pick toxic pollutants to regulate, and to specify the use of particular emissions control technologies like scrubbers.
What this case was about was whether this grant of authority could be fairly read to encompass telling entire industries what power generation mix they must use.
This is not like requiring the CEO to sign off on a minor bug fix. The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization. Even huge companies routinely require executive approval for major new initiatives that will incur major costs to the company.
> (1) The term "standard of performance" means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.
Congress intentionally broadly authorized the EPA to determine and implement the best system for reducing pollutants such as carbon emissions, and used language pursuant to that. Just because it offends certain Justices' sensibilities and ideological predilections doesn't mean that they can choose to ignore clearly stated parts of lawfully enacted statutes.
> That is incorrect. Congress cannot broadly delegate authority to make rules with the force of law on the executive branch. Even liberals begrudgingly accept separation of powers.
DEA, ATF, FDA, OSHA, CFPB, CDC, EPA, and FCC would all tend to disagree with this assessment.
There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
> The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization.
Again, the EPA is checked by both the executive branch AND congress through the CRA. Both of which are checked by the people.
Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing? Doesn't that signal that maybe there's a major problem here?
They are picking the conclusion they want to reach and writing the opinions that support those outcomes. They are legislating from the bench.
> DEA, ATF, FDA, OSHA, CFPB, CDC, EPA, and FCC would all tend to disagree with this assessment.
They wouldn't, at least not to a court's face. You mention "Chevron deference" below, but the whole idea behind Chevron deference is that agencies are exercising executive discretion in enforcing the law, not making new ones.
> There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
The Constitution gives the power to make laws to Congress. Full stop.
> Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
Judges in the mid-20th century engaged in massive political activism to rewrite the Constitution from whole cloth. Undoing that tomfoolery is not itself "political activism."
> You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing?
It distresses me that you can predict how liberal justices will vote on any significant case. It brings me great relief that conservative justices are full of surprises. Just in the last few years, ACB was supposed to overturn Obamacare (she voted to uphold it), Gorsuch and Kavanaugh were supposed to find that the Civil Rights Act doesn't protect sexual orientation, etc.
There's a thread circulating on twitter about the 24 worst decisions from this SCOTUS term, and, because I don't like Twitter threads, I took the time to skim all the decisions. So this stuff is fresh in my head.
You're being unfair to the liberal justices here --- there are surprising votes from liberals on QI cases (Rivas-Villegas, Talehquah), habeas (Brown v Davenport), state secrets (Zubaydah), social spending (Vaella-Madero), and immigration (Aleman Gonzalez). You cannot simply predict a liberal justice's opinion from their ideological inclinations. Not even Breyer, who is the most boring liberal justice (he wrote the opinion on Zubaydah).
Meanwhile: Gorsuch is often surprising --- not just on the Native American sovereignty cases, but also on habeas (Shoop) and immigration (Patel, an excellent Gorsuch dissent).
The other conservative justices? Not so much! In particular: you can reliably predict Alito and Thomas, the two most blinkered justices on the court regardless of ideology.
By the way, and apropos nothing here, everyone should read Egbert v Boule, not just because it's absolutely the most ludicrous (and funny) case you'll ever read about that reaches SCOTUS, but because it's a far-reaching and bad decision.
You’re right I shouldn’t have painted with such a sweeping brush. Kagan and RBG were plenty rigorous. But Breyer? All of his decisions read like hand waving to me. I agree Alito can be quite ideological, as the first draft of Dobbs showed. But Thomas is one of the clearest thinkers on the Court.
I think an overlooked aspect in all of this is how dramatically judicial philosophy has changed in the past few decades, across the board. Breyer, Kennedy, O’Conner, and Alito were from a generation that believed in the notion of judging as dispensing justice from on high. Younger folks like Kagan are uncomfortable with that even when though they seek to preserve liberal precedents built on that sort of judging.
The result of that is that younger conservatives find these older precedents incomprehensible, and younger liberals have a tough time defending them on the merits. Egbert v. Boule is a good example. I think the dissent probably had the better argument if we think of Bivens as anything more than an aberration that ought to be limited to its facts. But I struggled in reading the dissent to find any reason to treat Bivens as correctly decided. I remember being skeptical of Bivens when I first encountered it as a 1L, but to my recollection the opinion at least offset the tenuous reasoning with flowing judicial rhetoric. Sotomayor’s dissent, written in a modern analytical style, doesn’t even accomplish that.
> You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing? Doesn't that signal that maybe there's a major problem here?
To be fair, you can do this with judges on both sides of the partisan divide.
It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
> To be fair, you can do this with judges on both sides of the partisan divide.
At the supreme court level? Yes, because it takes 4 votes to chose which case gets cert and we have 6 activist justices that want to completely rewrite jurisprudence for political gain. How are the liberal justices supposed to vote when the questions often being asked are now "Hey, should we overrule this long standing precedent for political motivations?"
However, standard jurisprudence isn't nearly this bad in the federal court level. The outcomes there can be far more difficult to predict based on who appointed them.
> It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
While I don't disagree, unfortunately the constitution was setup with the notion that the SC would be above political divide (hence, being unelected and having lifetime appointments.)
I certainly wouldn't mind some sort of constitutional amendment trying to address that. Though, I just don't see it as likely.
Regulatory agencies exist based on the theory that Congress can leave it to agencies to "fill in the details" of a law as part of the executive discretion about how to enforce the law. In the Clean Air Act, Congress gave the EPA authority to pick toxic pollutants to regulate, and to specify the use of particular emissions control technologies like scrubbers.
What this case was about was whether this grant of authority could be fairly read to encompass telling entire industries what power generation mix they must use.
This is not like requiring the CEO to sign off on a minor bug fix. The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization. Even huge companies routinely require executive approval for major new initiatives that will incur major costs to the company.