Since I'm a reasonably well-known textualist, I'll bite:
First, the court was not asked to reconsider the meaning of the First Amendment. In the US, we generally hew to the rule of "party presentation," which generally provides that courts will consider the parties' arguments, not make up new ones on their own.
TikTok's claim was that application of the statute in question to it violated the First Amendment's clause that "Congress shall make no law...abridging the freedom of speech." The Supreme Court has considered the interpretation and application of that clause in...well, a whole lot of cases. TikTok asked the court to apply the logic of certain of those precedents to rule in its favor and enjoin the statute. It did not, however, ask the court to reconsider those precedents or interpret the First Amendment anew.
Since the court was not asked to do so, it's no surprise that it didn't.
Second, as noted, the court has literally decades' worth of cases fleshing out the meaning of this clause and applying it in particular circumstances. Every textualist, so far as I'm aware, generally supports following the court's existing precedents interpreting the Constitution unless and until they are overruled.
Third, even if one is of the view that the Court ought to consider the text anew in every case, without deferring to its prior rulings interpreting the text, this would have been a particularly inappropriate case for it to do so. A party seeking an injunction, as TikTok was, has to show a strong likelihood of success on the merits. That generally entails showing that you win under existing precedent. A court's expedited consideration of a request for preliminary relief is not an appropriate time to broach a new theory of what the law requires. The court doesn't have the time to give it the consideration required, and asking the court to abrogate its precedents is inconsistent with the standard for a preliminary injunction, which contemplates only a preview of the ultimate legal question, not a full-blown resolution of it.
Fourth, what exactly was the court supposed to do with the text in question, which is "abridging the freedom of speech"? The question here is whether the statute here, as applied to TikTok, violates that text. Well, it depends on what "the freedom of speech" means and perhaps what "abridging" means. It's only natural that a court would look to precedent in answering the question. Precedent develops over time, fleshing out (or "liquidating," to use Madison's term) the meaning and application of ambiguous or general language. Absent some compelling argument that precedent got the meaning wrong, that sort of case-by-case development of the law is how our courts have always functioned--and may be, according to some scholars, itself a requirement of originalism.
What a tendentious headline. Of course an employer has the right to hold an information session for its employees and convey its views. The Supreme Court held in 1941 that nothing in the National Labor Relations Act prohibits an employer "from expressing its view on labor policies or problems" unless the employer's speech "in connection with other circumstances [amounts] to coercion within the meaning of the Act." NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 477.
Subsequently, in 1947 Congress enacted an express speech protection in NLRA § 8(c): "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit."
That provision "implements the First Amendment," NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). It also manifested a "congressional intent to encourage free debate on issues dividing labor and management." Linn v. Plant Guard Workers, 383 U.S. 53, 62 (1966).
So, yes, it has been well established for nearly as long as we've had federal labor law that employers can tell their employees why they think unionization is a bad idea. The First Amendment guarantees them that right, and Congress also guaranteed it by statute. And those rights obviously apply to statements like (from the article) "Unions make money by collecting dues from their members." One can certainly disagree with such a message, but the notion (asserted by a union attorney quoted in the article) that speech protections don't apply to employer speech is bonkers.
It's one thing to say these things. I'm sure Amazon has a website somewhere saying such things, for anybody who wants to read them, that's fine. It's another to obligate people to listen or to threaten them, explicitly or implicitly, about things you might do if they vote a certain way.
They're employees. The employer pays them for their time and can demand that they attend whatever activities the employer chooses, from work training sessions to anti-harassment training sessions to sessions talking about corporate culture to sessions expressing the employer's views on topics like unionization.
If you want, you can hire someone to listen to you talk 8 hours a day on whatever topic you choose--there's no law against it.
You have a fair point, but also consider the large imbalance of power here.
On one side you have a mega-corporation that can take away the employees ability to eat, live indoors, or receive required healthcare. On the other you have Joe Six-pack who could possibly mildly inconvenience his employer, at worst.
Granting the mega-corp the ability to speak it's mind, without also guaranteeing Joe a few rights in return is just moving that threat from explicit to implicit.
This is wrong. Your employer cannot ask you to engage in things that compromise your safety or otherwise illegally put you in harms way.
The thing at question here, is whether the implicit threat of job loss constitutes such a case. I would argue it absolutely does - especially for those at the bottom of the income ladder (like amazon workers). This is an existential threat to coerce a behavior.
Is there any similar guarantee that an employee can respond by sharing their contrary opinion without consequences? If not this seems less like freedom of speech and more like an implied threat.
Ah, forgotten records, including the musings of poet Allen Ginsburg, provide a secret decoder ring to interpreting the Clean Air Act. This is not, of course, how one interprets statutes.
For what it's worth, the linked press release's description of the Supreme Court's decision is wrong; the court did not, in fact, hold that "Congress had not empowered the EPA to regulate greenhouse gases," but that it could not regulate in the manner that it did. And, so far as the statute at issue is concerned, the evidence is overwhelming that it was never intended to empower EPA to restructure the nation's electricity system. I wrote a fair bit about this at the time, and was apparently persuasive.[1]
How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Recent court opinions seem to take the stance that congress hasn’t legislated thoroughly and accurately, and now have crippled the chevron doctrine saying it should be in their hands.
There’s parallels here with software development, I think. It’s easy to come up with a basic system that works as intended but is not robust to failure. It’s extremely hard to near impossible to be both succinct, correct, and robust to failure. You also wouldn’t expect the PMs to be responsible for the implementation.
Of course, many lawmakers are happy to outsource the coding to special interests.
One option would be to just have fewer federal laws altogether, and devolve most authority back to the several states. The federal government was only able to assume many of it's current powers due to a series of Supreme Court decisions that allowed Congress to use the Commerce Clause to legislate on issues only loosely connected to interstate commerce. Those precedents can be overturned.
Decentralized, peer-to-peer systems tend to be pretty robust. Even if a few states "fail" the others will be fine.
The previous poster is right that the commerce clause (amongst others) have been twisted incomprehsnibly and while there’s a benefit, it’s begging to be overturned (and in a ‘realist’ sense, they should be). The answer then is for an amendment to provide the (expected) additional powers to the federal government.
And then we end up in the same situation where there's some new thing that should probably be regulated at the federal level but can't be since it's not explicitly listed in the constitution.
Imagine one day we invent portable teleporters. They would immediately be used for crime once they are available on the market although there would certainly be plenty of legal uses. That sounds like something the federal government should regulate, yes? You simply can't leave that up to the states because everyone is going to have a different standard for who can own one such that all you would need to do is travel to the least regulated state, buy a teleporter, and teleport back home. Having 50 different laws saying who can and can't own one would simply not be feasible based on how easy people can travel across the country. The federal government would need to establish regulations but only if the constitution says they can. Congress in 2024 would not have any notion that those could exist and would likely not explicitly give the federal government the power to regular them.
That’s by design. It’s a feature of US constitutional history, not a bug. You might not like the feature, but it was hotly debated in the 1790s and state rights were agreed upon. Abuse the constitution and we’ll imperil ourselves in other ways
>And then we end up in the same situation where there's some new thing that should probably be regulated at the federal level but can't be since it's not explicitly listed in the constitution.
Which is sort of the point of the structure of the US government. A government of a United collection of States, whose power is derived not from holy writ or mandate but from the people of those states granting powers to that government. If they don't grant the power, the government can't do it.
>You simply can't leave that up to the states because everyone is going to have a different standard for who can own one such that all you would need to do is travel to the least regulated state, buy a teleporter, and teleport back home. Having 50 different laws saying who can and can't own one would simply not be feasible based on how easy people can travel across the country.
And yet we do this all the time. Cars and their ownership are regulated on a per-state level, marijuana (ironically because the federal government has overstepped too far and the states and their people fought back) is legal or not in various forms on a per state level (and this as I note, despite being federally illegal). Guns, knives and indeed pepper spray are similarly regulated on a state by state basis. As are radar detectors. So much of people's day to day lives are regulated at the state levels and it works plenty fine most of the time. This need for everything to be uniform across the country is tempting, but like all things in life is full of trade offs. One shouldn't have to cast their memory too far back in time to imagine what it might be like for a federal administration run amok to have absolute authority over too many things.
What kind of industry wants to navigate 50 distinct full sets of laws, regulations, oversight/enforcement practices, and penalties that change at state borders but have to somehow be made to work together, at scale, in order to function. Businesses really don't want a ton of red tape involved just to send an email from your office in one state to your office in the next state over.
Federal laws are great because they can cover the majority of that stuff that applies to every state and meaning that you only have to worry about a few small changes (if any) from state to state. Federal law is more stable and can even override state laws. That's so much easier.
If every business only had the reach of a local corner grocery store, maybe state laws would be ideal, but for a national or international business the less you have to worry about local laws the better.
> What kind of industry wants to navigate 50 distinct full sets of laws, regulations, oversight/enforcement practices, and penalties that change at state borders
This is actually quite typical. Most areas of the law are not within exclusive federal preemption, so companies do have to navigate the laws of 51 jurisdictions (not counting cities and counties which may also have applicable laws) if they want to operate nationwide.
The other side of this coin is maybe if there was less uniformity and less federal law pre-empting state authority, massive multi-state corporations wouldn't have as much power and control. We can take the EPA vs CARB as an instructive example. EPA regulations pre-empt federal law, and California gets a specific, expiring exemption to have stronger regulations. But maybe emissions regulation could be even better if more states with like minded people were able to pass stronger regulations like California. Certainly one wonders why only California has such an exemption given the apparent popularity of stronger regulations.
> How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Specificity plus brevity plus non-delegation add up to a limit on the load of law that we are subjected to. It's the bias toward freedom of individual action of classical liberalism. You are entirely correct that this kind of limitation would be crippling to a software project. Gorsuch just doesn't think that the state should have that degree of detailed control.
The Bill of Rights is a specific list of things that government cannot do. It's been under constant assault ever since.
Something to keep in mind when thinking about Chevron.
Consider the 2nd Amendment. I'm not a gun nut, and in the abstract don't care much if gun ownership was banned. However, that would require simply ignoring the 2nd Amendment. If the 2nd can be ignored, ignoring the rest cannot be far behind.
When you let a tiger into your house to get rid of the dog, the tiger won't stop there.
A constitution is not a sacred text but a very practical one. The constitution of my country went trough five major rewrites and was amended approximately a dozen of times since the last rewrite and somehow we are still a liberal free country.
The idea that touching it in any way or form is a slippery slop leading to less rights is a fallacy.
It isn’t that “touching it” is a slippery slope, but that ignoring part of it is a slippery slope.
If an amendment is passed to change the 2nd amendment, that’s one thing.
But not doing that, and just banning private gun ownership (or whatever law one might want to pass that goes against the second amendment) anyway, would be a rather different thing.
The Constitution isn't meant to be immutable, the Constitution itself specifies a process for changing the Constitution. That process has been used numerous times before, so we know it can work. The people who want to ignore that process are people who want to change something in the Constitution but lack the requisite political support to do it properly. This is why they get told off.
The Second Ammendment could be nullified with a new Amendment that undoes the Second, but this isn't seriously entertained by gun control activists in America because it would be extremely unpopular so there's no way they could pull it off. Instead, they intend to simply ignore the law.
Sure but the explanation conveniently sidesteps the issue with the senate lack of actual representativity. Even a popular law could easily be blocked by a small minority in the rural states.
Anyway I’m not American. The quality or lack thereof of the US political system doesn’t really affect me. Would appreciate the US getting its act together when it comes to GHG emission however because we share the same planet.
The senate has plenty of representativity. Is China or India any less represented at the UN because they have the same number of votes as Cuba and Micronesia? Surely there are a few "popular" items China or Russia might like to see passed that are blocked by "a small minority in the rural states" of Europe?
Beyond that, the states themselves can petition for a constitutional convention. 2/3s of the state legislatures would be all it takes to kick that process off, no senate "representativity" required (unless I suppose the senate wanted to argue that "congress shall call a convention" does not obligate congress to do so. But I suspect that's a constitutional crisis even the most obstructionist senators would be reluctant to take on in the face of 2/3s of the states actually petitioning congress.
> Is China or India any less represented at the UN because they have the same number of votes as Cuba and Micronesia
Yes, very much so. That’s part of why the UN is not taken very seriously and why the security council exists.
> The senate has plenty of representativity.
Debatable. It was certainly fit for purpose when it was set in place. Is it appropriate nowadays? Probably not, especially when you consider how it impacts the electoral college.
I tend to find the USA political system a bit dubious (I think the same of the one of my own country to be clear and I generally have a poor opinion of presidential systems anyway). Still, the country has been mostly stable until now so I guess it’s fit for purpose.
> Sure but the explanation conveniently sidesteps the issue with the senate lack of actual representativity
That complaint isn't addressed by empowering political appointees from the executive to write laws the courts aren't allowed to challenge. Least of all, laws which violate he Bill of Rights!
The gun nuts have convinced so many people there is only one way to read the 2nd amendment.
"Despite the Supreme Court’s rulings in Heller and McDonald, many constitutional historians disagreed with the court that the Second Amendment protected an individual right to “keep and bear Arms” for the purpose of self-defense in the home. Indeed, for more than two centuries there had been a consensus among judges as well as scholars that the Second Amendment guaranteed only the right of individuals to defend their liberties by participating in a state militia. However, by the late 20th century the “self-defense” interpretation of the amendment had been adopted by a significant minority of judges. The self-defense view also seemed to be taken for granted by large segments of the American public, especially those who consistently opposed gun control."
They've done that because other readings require some pretty significant twists and turns to get there. Some are more reasonable than others, but take "guns" out of the equation and the individual right becomes obvious. Consider the following text:
"A well educated electorate, being necessary to the proper functioning of a democratic state, the right of the people to keep and read books, shall not be infringed."
A reading of the 2nd amendment that doesn't see it as an individual right means we must read the forgoing as protecting the right to keep and read books only for the class of people that are eligible to vote, and only in the service of educating them. And realistically, if you put that text on a multiple choice SAT with the question "Who has the right to keep and read books?" I don't think you're going to get many people answering "only people eligible to vote".
Beyond that, to read the 2nd amendment as not protecting an individual right would also require an interpretation of a right of "the people" to mean something other than every other reading of "the people" throughout the rest of the document:
* The right of "the people" to peaceably assemble as outlined in the first amendment is not limited to members of religious orders or members of "the press".
* The right of "the people" to be "secure in their persons, houses, papers, and effects" is certainly not limited to some government defined collection of people who only have that right while they are collectively acting.
* The "person" whose rights are protected by the fifth amendment has been time and again ruled to be an individual.
* The tenth amendment clearly distinguishes between the federal government, the states and "the people". If "the people" are supposed to be the militia, how then are they distinct from the federal government or the state?
* The fourteenth amendment refers to "persons" and their privileges, immunities, life, liberties and property. But how could the state infringe on the rights of those people if the people are the militia and the militia is an arm of the state?
It seems strange that in a collection of amendments specifically in place to outline some hard limits on government power and particularly with respect to individuals under that government, that one and only one of those limits was to restrict the government from limiting another arm of the government, but in terms that referred to individuals in every other case it was used.
Most laws are written in response to harm. The goal is to prevent the harm, but how to achieve the goal is not something you can encode into law in some kind of recursive function. Context matters.
> extremely hard to near impossible to be both succinct, correct, and robust to failure.
It depends on the size of the overall system. The smaller the system the easier this is to achieve.
> many lawmakers are happy to outsource the coding to special interests.
In and of itself, this is actually a good thing, as you point out:
> You also wouldn’t expect the PMs to be responsible for the implementation.
So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto any legislation that hasn't passed with a super majority.
> So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto
I think what you would want are non-bribed congressmen writing laws for the good of the people and not to increase the wealth and power of a select few at the people's expense, while those laws are being informed/reviewed by experts who don't have a conflict of interest (which should include not accepting money/favors from people who do) and then having a President (who should also not be accepting bribes) able to veto laws.
Having corporations and lobbyists hired by industry write laws that favor them to the detriment of everyone else, then getting those same laws passed thanks to a series of dark money bribes and promises, then having a similarly bribed president rubber stamp those laws is what brought us to where we are right now.
If our current system is working as intended, then the system has failed by design and needs adjusting. If it isn't working as intended and private corporations were never supposed to be able to have this level of influence over government or have the ability to cause harm to the degree that they have, then the system still needs adjusting to correct the situation.
> while those laws are being informed/reviewed by experts who don't have a conflict of interest
How do you create this rather mythical class of individual? Wouldn't the time taken to gain the expertise also subject them to bias from the companies they worked for? We can put time limits on the "revolving door" but you're essentially building a policy that actually relies on it.
> lobbyists hired by industry
When an industry is not monopolized and has healthy competition why would you expect the industry, possibly represented by a trade group, to be incapable of writing good long term policy? How do you account for the many times where this has actually happened and continues to happen?
There is a monopolization problem in many industries. This gives a single corporate entity massive power. Perhaps more power than the federal government itself. Isn't this what "too big to fail" or "too big to disband" represents? Hasn't it been shown that actual legislation is meaningless to these entities already?
> is what brought us to where we are right now.
Where did you think we were before?
> then the system still needs adjusting to correct the situation.
If laws aren't being enforced already how is modifying the system for writing them possibly going to solve your apparent complaints?
> How do you create this rather mythical class of individual? Wouldn't the time taken to gain the expertise also subject them to bias from the companies they worked for?
If you've known many employees you'll know that having worked for a company doesn't always instill undying devotion to that company or require placing the company's interests above all over concerns. I'm also not convinced that all experts need to have actively worked directly for the companies being regulated either.
> why would you expect the industry, possibly represented by a trade group, to be incapable of writing good long term policy?
I don't, but I do expect them to write policy that benefits them regardless of who else or how many others are hurt in the process. Corporations are amoral monsters that care only about profit. They'll happily create legislation that allows them to pollute the Earth, poison entire communities, hinder existing competitors while limiting the ability of would-be competitors to become a threat, and limit our ability to hold them meaningfully accountable for the harms they cause. In some instantiates legislation can further their selfish goals while, even if only by coincidence, also align with the general public's interest. Their legislation might also not pass as written, and through negotiation to get them what they want a representative might concede to modifications that give the people something they need as well. Industry doesn't write legalization for altruistic reasons and they certainly don't write it because they want to get or stay elected.
> Hasn't it been shown that actual legislation is meaningless to these entities already?
It shows that our current legislation hasn't been written with the intent to constrain them. We know from experience that strong regulation with teeth can do a lot of good, but industry spends massive amounts of money bribing lawmakers to throw out effective laws and regulation so that they can do whatever they want without consequence.
> Where did you think we were before?
I think that before corporations weren't spending billions every year in lobbying. I think that before Citizens United and Super PACs corporations weren't able to freely funnel unlimited amounts of money into the pockets of congressmen and presidents. Before we were in a nation that didn't grant nearly as many rights and privileges to corporations, didn't consider them people, and didn't consider money to be speech. Labor unions were much much stronger and public-interest groups had a greater influence on politicians because their voices weren't drowned out by the floods of money corporations were able to spend.
> If laws aren't being enforced already how is modifying the system for writing them possibly going to solve your apparent complaints?
Laws are being enforced, but laws constraining industry have been made limited, weak, and ineffectual following more than a century of coordinated efforts by corporations to corrupt our political system, overturn laws and regulations that limit their profits and power, and weaken the ability for anyone to hold them accountable. By modifying our system for writing laws in ways that seek to minimize corruption and limit the ability for corporations to pass self-serving policy, reforms to undo much of the damage they've caused our political system become possible. I do not believe that it is impossible to limit the outsized and still growing influence of corporations on our laws and political system. I think that we can still fight against corruption in politics, but we can't do that while the very cause of that corruption is writing our nation's policy and filling the pockets of politicians with limitless cash.
The Major Questions Doctrine is just a way for the Court to reject a reading of a statute even it agrees is supported by the plain text. It a statute gives an agency broad authority, the agency should have broad authority, and if Congress doesn't like it, it can claw it back. All the Supreme Court did in the EPA cases was insert its own policy preferences for that of the elected branches by inventing a notion that a statute needs to be super-duper extra clear if agencies want to do something businesses don't like. Bravo for helping convince the Court to adopt this intellectually bankrupt framework.
Comments like this, where someone who is directly involved and deeply knowledgable, randomly jumps in are why I love HN.
People are so fixated on a result (in this case lowering CO2 emissions) that they can't see past that to consider the actual fundamental legal principles of court decisions, especially supreme court ones. I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends. Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions. It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision, they commonly seem to not even report on the actual legal question being decided! I have never seen a single mainstream news article which correctly casts blame on congress for failing to legislate effectively or unambiguously.
> Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
We don't need to hypothesize, Chevron was the law of the land for most of our lifetimes until the self-appointed Supreme Court super-legislature intervened. Arguably Chevron itself was the courts recognizing established legislative function with federal agencies that had existed for decades prior. We can see exactly how federal agencies would or would not abuse their authority, and congress really didn't have a problem with the situation as evidenced by the the absence of legislation to change the arrangement.
The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.
It must be a relief that instead of unelected, unaccountable bureaucrats interpreting highly technical implementations of vague statutes, we'll now have unelected, unaccountable judges doing it.
It is, for the same reasons that it's a relief that the "unelected, unaccountable judges" interpret highly technical implementations of vague criminal statutes instead of the police. Because the police by their nature are biases towards the interpretations that make their jobs easier and give them the powers they want regardless of if they actually have it.
> it's a relief that the "unelected, unaccountable judges" interpret highly technical implementations
In the same judgment where the Supreme Court gave themselves total power to interpret technical implementations of the law, they confused nitrogen oxides with laughing gas.
I wish I shared your faith in the ability of narrowly specialized lawyers to work outside their core competency.
I have very little faith in the ability of narrowly specialized lawyers to work outside their core competency. The courts get things wrong all the time. I also have little faith in the ability of narrowly specialized administrators outside their own core competency (that being administration), or for that matter, administrators in a revolving door of regulatory capture.
My faith is in the same thing all of open source places their faith in, enough eyeballs. Congress makes a law, administrators enforce said law, citizens challenge said enforcement, courts rule on the state of the law, congress makes a law. And as we iterate over this process, the bugs are ironed out, the stakeholders have input and we work ever more towards a "more perfect" ideal.
> Congress makes a law, administrators enforce said law, citizens challenge said enforcement, courts rule on the state of the law, congress makes a law.
This is a wholesome, well intentioned idea that I support.
The problem is that for most of our lifetimes congress has been operating under a model, specified by the Supreme Court, that regulators would make a reasonable interpretation of the laws that congress wrote. Think of it as the city council saying "The parks service shall keep the parks clean and safe." Not splitting hairs about every possible threat to safety, or defining exactly what clean means. Like it or not, legislators can't and don't want to exhaustively consider every possibility, and they can't react in a timely fashion to novel problems.
The courts suddenly turning this arrangement on its head and seizing the reins is not something that voters or legislators ever envisioned. It's exactly the kind of disruptive, chaotic move that an apolitical court would run far away from, and exactly the kind of move that destroys faith in the courts.
The one blessing that could come from this move is that it will force the other two branch to take a sober look at the brazen partisanship of the supreme court, and hopefully exercise congress's power to deeply reform. Regardless of your political leaning, we should all want to rip partisanship out of the courts by the roots.
I don't think that the removal of the Chevron deference means that regulators can't make "reasonable interpretations" of the laws. I don't think one could reasonably say that regulators were prevented from doing so from the founding of the country until 1984. The Chevron deference wasn't giving regulators the ability to make reasonable interpretations, it was a policy of biasing the courts to that interpretation. In my opinion that wasn't a good thing. The courts are inherently biased towards the government in the first place, what with them being part of the government, there's no reason to have an official policy of bias as well.
The parks service can continue to be mandated to "keep the parks clean and safe", but when their regulation that "no minor children shall be allowed in the parks except under the supervision of a related adult" is challenged by the local pre-schools because it prevents them from having field trips to the parks, the courts are no longer required to find that because requiring children to be supervised by relatives is a reasonable interpretation of "keeping the parks safe" that they must then conclude the regulation is within the scope of authority.
>The one blessing that could come from this move is that it will force the other two branch to take a sober look at the brazen partisanship of the supreme court, and hopefully exercise congress's power to deeply reform. Regardless of your political leaning, we should all want to rip partisanship out of the courts by the roots.
I find myself hoping that the other branches rather take a sober look at their own behavior and seek to remove the need for the courts to be so involved in the day to day operations of the government. We are in this position largely because for a few decades now Congress has abdicated their responsibility to legislate and regulate and also to represent the people in favor of deadlocking themselves and avoiding responsibility for making hard decisions. Net Neutrality is a perfect example of this. It's exactly the sort of major change in regulation of communications that congress should absolutely be responsible for outlining, and instead they have allowed the executive branch and the courts to fight it out and so we've seen it flip flop from being law to not law multiple times.
> The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.
A good number of those in congress intend to exploit this opportunity to push ideological and political changes while crippling the efforts of the other members to do anything to stop them. Unless/until there are enough people in congress who see this situation for the danger that it is, there's no chance of new legislation that would do that.
how can we interpret that the legislature doesn't have a problem with chevron because they didn't draft countering legislation, but take the opposite approach when they don't draft countering legislation in the opposite case?
"It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision"
In a lot of cases, they do more than that and outright misrepresent it.
> they can't see past that to consider the actual fundamental legal principles of court decisions
Precisely.
The court isn't ruling about CO2 emissions, it's ruling how the government operates within the confines of our constitutional system.
If Congress fails to pass a law that correctly empowers an administrative body to regulate X, then that regulatory body should be prevented from regulating X.
The issue then gets kicked back to Congress, where their job is to refine the law to address its deficiencies.
The idea that Congress can pass overly broad laws that administrative bodies can then independently interpret that are outside the ability to challenge in a court of law seems like a terrible system.
> I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends.
Uh, the US has a deeply dysfunctional system. It covers most aspects of governance, judiciary, legislative, electoral system, the fifth estate.
It’s entirely reasonable people are only concerned with outcomes, and not process.
I agree that we are deeply dysfunctional but it's not about "outcomes vs process"
It's a very short-sighted thinking of how the process change they want to achieve their outcome today could result in someone else using that same process change for a very bad outcome in the future.
> It's a very short-sighted thinking of how the process change they want to achieve their outcome today could result in someone else using that same process change for a very bad outcome in the future.
This point needs to be amplified to a near unbearable volume. Turn it up to 11, as it might be said.
Discussions like packing SCOTUS to achieve "desirable" outcomes today completely ignore what the next person in office can/will do with such a precedent tomorrow. We can see this already with Executive Orders and how commonplace they have become - only for the next person in office to undo most or everything.
People, in general, need to be more focused on what is best for the nation long-term, not what is best for their political party today. Unfortunately for many, it seems, the difference has become blurry or unrecognizable. So many people have become victims of believing whatever propaganda their party of choice has put out there, and become hostile to any viewpoints that do not fall inside those lines. "We'll lose our democracy if X happens or if Y is elected". How many "most important elections of our lifetime" are we going to have?
The functioning of this country was based on the idea that separate branches would use their powers to balance each other. While increasing the size of the court may seem “bad” to you, it’s one of the explicit mechanisms provided by the Constitution for the Legislative and Executive branches to balance out overreach by the Judicial branch. This is the system working as intended. And in the one historical instance where we got very close to actual “court packing”, the result was not partisan warfare, but rather a detente between the branches that led to a period of political stability and prosperity unmatched in US history.
So one side packs, say 3 new justices onto the court to get their desired outcomes... until they lose an election. Then that next person packs 800 new justices so they can get their outcomes.
Do you see the problem?
That's the short sightedness the GP was commenting about, and it's kind of nutty to realize so few people comprehend such a basic concept. Yet, here we are.
We’re already in a place where one side is using the court as a tool to realize political outcomes. Whether you want to see it or not, the Immunity decision was a huge step in a dangerous direction; and there is certainly a bunch of evidence indicating that some justices on this Court are not dispassionate in their political views and will absolutely step into the democratic process to overturn voting results.
Nobody is packing the court right now. What’s on the table (and only as a discussion, not even as an actionable legislative proposal) is a reasonable package of term limits and meaningful ethics rules — rules that frankly shouldn’t even be a little bit controversial, or even necessary if the Court was doing an even mediocre job of self-policing. But if things get extreme and the Court does begin to cross political lines and override electoral decisions, then I would much rather see a Constitutional response than political violence. My hope is this possibility causes everyone to be as cautious as possible, rather than starting a political war nobody will win.
> We’re already in a place where one side is using the court as a tool to realize political outcomes
> But if things get extreme and the Court does begin to cross political lines and override electoral decisions
This is now the information bubble that was also discussed in this thread.
No, "one side" is not using the court to realize political outcomes. Both sides are - and one side had a few decade head start if we really must sling mud. Some people don't like the outcomes recently, so they attack the courts as being stacked/abused/etc. forgetting all about the past few decades where they championed nearly every outcome...
In politics, you don't always get what you want. Some people find that concept inconceivable. When they don't get what they want, it must be because of cheating/abuse/criminality/whatever.
Here's a graphic showing the composition of the Supreme Court in terms of GOP vs. Democratic appointees over the past nine decades [1]. There were certainly periods of Dem dominance but they were relatively short compared to the overwhelming GOP dominance on that chart.
I do agree that the hyperbole often seem in the media ("the most important decision", etc.) is quite ridiculous. That being said, keep in mind the assumptions you make when thinking long-term.
For example, I've had it argued to me that that homosexual individuals shouldn't be allowed civil unions, as doing so would lead to the bankruptcy of the federal government. The "long-term thinking" here was that allowing unions between homosexual individuals would, at some future point, lead to allowing unions between polygamous groups*, which would then lead to people joining in unions for tax purposes, which would then lead to a disruptive loss of income for the government.
Okay, here’s the first step: install a pluralist democracy via a representative democracy.
That’s gonna take perhaps 100 years, nobody is even talking about it. One party wants to move to some sort of crypto-fascism where a former but dwindling majority will stay in power forever. The other party fashions itself as the „only“ democratic choice against that, and enjoys that position of being the only choice… and doesn’t seem to see the irony that if you’re „the only choice“ in a democratic system, it’s not a democratic system.
In the meantime while fixing the system, please deal with the climate crisis, otherwise this whole „long term view“ will be moot.
The fact that the main way to achieve an outcome in the US is by changing the process is the outcome-vs-process dysfunctionality. It's not short-sighted thinking, it's realism. The US politico-legal environment has far more respect for process than for outcome, so processes have been co-opted to serve political purposes and if you try to simply follow the existing process or set a neutral process then you'll always lose.
I worry that the idea is the process changes being made today will be used to prevent anyone else from having a hope in hell of being able to use it at any point in the future.
The US is not deeply dysfunctional. Some amount of friction is built in to put the brakes on any sudden outcropping of nonsense from any single element of government.
While I agree with you in principle, that the friction is "as designed," I still say our system is broken -- even when there are things which a supermajority of people agree on, our legislators are unable to craft solutions which align which the majority of people agree with, without inserting things which are designed to cater to tiny minority special interests, which can effectively "poison pill" a bill so that nobody likes it (even if it's passed).
Alternatively, we pass giant tomes of legislation (esp budgets) which literally nobody can understand let alone agree on.
If a supermajority of people agree on both the purpose and implementation of anything, then their elected representatives will easily come to an agreement as well. That's literally how laws get passed.
Conversely, not passing laws is a feature, not a bug.
> Alternatively, we pass giant tomes of legislation (esp budgets) which literally nobody can understand let alone agree on.
I agree. These massive laws are rushed through precisely because leadership knows that people won't have enough time for debate, let alone in proper order.
So, so, so many people get caught up in information bubbles and fall victim to thinking everyone agrees with their viewpoint. This leads to the disillusionment with congress and the belief of it being "ineffective" because from their perspective, everyone is in agreement so why are these policies not being passed?
No, instead the system is working as designed. When there is no consensus on a policy, the policy is not passed.
> If a supermajority of people agree on both the purpose and implementation of anything, then their elected representatives will easily come to an agreement as well. That's literally how laws get passed.
In a representative democratic system.
The US does not have a representative democratic system.
> If a supermajority of people agree on both the purpose and implementation of anything, then their elected representatives will easily come to an agreement as well. That's literally how laws get passed.
That's not even close to how laws get passed. If what you say were true, then why don't we have many laws the vast majority of Americans want and have laws most Americans oppose? Americans are overwhelmingly against gerrymandering, but miraculously there's no law banning the practice. They also disapprove of overturning Roe v Wade and corporations being considered people. They support legalization of marijuana, support free college education, early voting, data privacy legislation, criminal justice reform, and a 4 day work week but again no help there.
> our legislators are unable to craft solutions which align which the majority of people agree with, without inserting things which are designed to cater to tiny minority special interests
"who fund their campaigns" fits at the end, doesn't it?
What are those things on which a supermajority of people agree, including implementation details and funding sources? Everyone wants more free stuff from the government. No one wants to pay higher taxes.
> I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions.
Are you equally persuaded by the dissenting opinions? It seems likely that you’ve been fooled by a bunch of lawyers, who are smart and highly trained at making plausible-sounding arguments for whatever their clients require.
Constitutional law is political. The Supreme Court is recruited and appointed for their political loyalties, and to a large extent their decisions conform to their political alignment. To treat their arguments seriously about which side is correctly interpreting a very old, very ambiguous document can be an interesting academic exercise, but it misses the point about what they are actually doing.
I don’t think this is the “bitter medicine” or “hard truths” you think it is.
Separately, while it’s very interesting that you played a role in writing this, and I believe that you’re correct in general about the errors in the linked articles: despite the fact that you are highly experienced, there are still idiots who win court cases, even Supreme Court cases, on crap arguments, sometimes. However, idiots never become surgeons. In my personal experience, I don’t know any idiots who also write sophisticated software. So this idea that there is some kind of objective, apolitical correct interpretation of a statue - that the practice of law at the highest levels in trials in front of the Supreme Court has this major objective element to it as surgery and math does - is kind of bupkis, you are as much practicing something imaginary, subjective, political, and poetical as the musings of Alan Ginsburg as the professors do.
So what is your opinion: do you really think Supreme Court decisions are apolitical? How would you tell the difference between a politically motivated decision that uses your arguments as a “parallel construction” to support that political decision, and a sincere belief that your way of reading the statue is objective and apolitical? Because that is what people are pissed off about.
That would once have been taken as gospel, then came Ben Carson standing by his statement that Egyptian pyramids were built for grain storage.
In the medical world there are strong opinions as to whether the procedural dexterity inherent in excelling as a surgeon also requires better than average reasoning prowess.
That's a pretty crazy example but I can top it. I've met programmers who think that Communism works and that Stalin was an admirable guy. Honest to god tankies.
I mean, there are unlicensed surgeons, who, presumably are unlicensed for multiple reasons, but one might be not being able to get certain degrees from accredited institutions -so, yeah, idiots do become surgeons of a type.
Ben Carson is (or was, likely not practicing anymore, I'd have to check) an acclaimed brain surgeon. I do not intend to diminish that in any way whatsoever.
Carson has also uttered statements in total sincerity that boggle the minds of historians, physicists, and the generally logically inclined. When questioned he's doubled down on "reasoning" that is considered to be anything but.
It highlights that we as a whole need to consider our role models for various peaks of achievement; medicine is a hard degree, it takes epic feats of rote memorisation and recall of thick textbooks, the ability to associate collections of indicators with multitudes of potential causes, the ability to grind and grind hard long hours through residency.
Surgery, for some, is a turn away from diagnostics towards human carpentry .. with no disrespect to surgeons, that's a framing they've heard before and a number embrace.
I think it's fairly obvious that the court system is more metaphysics than physics. Even when the laws are clear, we still have politically motivated jurists who will put their own denominational spin on the application of said laws.
Really? One need only look at lists of physicians whose medical licenses have been revoked or who have been sued for malpractice or abusing their patients to disabuse themselves of the notion that "idiots never become surgeons". Heck the history of medicine itself is instructive on that front. Education and success in a specific field does not preclude you from being an idiot in others or indeed even within your own field.
You give yourself far too much credit. You provided a fig leaf to cover an ideological power grab by the court, as evidenced by the naked 6-3 partisan vote split. The court was going to dismantle the EPA anyway, and you just gave them some flimsy reasoning with which to do it. They would have run with far less than this, as evidenced by the run of extremely questionable court decisions which have occurred since conservatives gained the super majority.
Honestly, who cares at this point? Obviously the intent of the clean air act was to reduce air pollution which obviously includes regulating greenhouse gas emissions. I'm tired of playing the "Well technically..." game while the planet is actively dying.
Thank you for providing your expertise in this comment section. A few followup questions, if you will...
1. Posit for a second that 1970s lawmakers did intend to delegate sweeping powers to the EPA under the CAA and allow it to regulate CO2 in ways that reshaped the every sector of the economy, when the time comes. MQD says the CAA as-written didn't accomplish that, regardless of what legislators wanted, because the EPA can't decide major questions except where legislators clearly scope and delegate that authority. True?
2. Posit that a supermajority of lawmakers, today, wanted to rewrite the CAA to actually delegate those sweeping powers of CO2 regulation to the EPA. This would be impossible, because it's not possible to enumerate all the major questions, and clearly scope and delegate the necessary authority, in order to free the EPA's hand across future decades of rulemaking impacting every major industry. True?
3. My sense is that the 2012 EPA rules mostly killed new coal plants and doomed existing facilities, practically accomplishing the same kind of "generation shifting" described in your brief. This seems like the kind of "major question" that you argue cannot be decided by EPA rulemaking. Though any number of legal and practical facts may shield those 2012 rules from post-hoc scrutiny, similar rulemakings today would probably not pass muster. True?
4. What (if any) defensible actions do you think the EPA could take, today, to reduce CO2 emissions under authorities granted by 111(d) of the Clean Air Act?
I don't think your second point is correct. Congress could most certainly empower EPA to administer a cap-and-trade scheme or even some kind of phase-out, as it did with (respectively) acid-rain precursors and CFCs. Congress could do the same for GHG emissions, without spelling out the impact on each and every affected industry or source. Congress might, for example, set an economy-wide emissions cap, set a schedule of annual caps or a formula, specify how EPA should go about determining the cap each year, or some combination of those things. If Congress specifies that all sources economy-wide (or some subset of them) will be subject to a cap, then it has answered the major question.
On your third point, see the paragraph on page 38 of my brief linked above. "Generation-shifting," as used in the CPP, was EPA's claim that it could set "achievable" emissions standards based on turning off a source. One can argue about whether new-source standards satisfy the statutory test (BACT) applicable to major industrial facilities and whether the agency's decision to set those standards at a particular level is supported by the evidence or otherwise arbitrary and capricious. But that's an entirely different inquiry from whether Congress empowered EPA to switch off more or less every source of emissions in the country as it so chooses.
So what about humans? According to a 2021 meta-analysis[0], Vitamin D has "no effect" on muscle growth and may even have a negative effect, particularly at high doses.
Your link seems to support the opposite of your advice. Tryptophan by-product seems to be bad.
> "We are trying to figure out why the changes are happening and if we can target those cells to make them want to make bone again," McGee-Lawrence said.
> [...]
> A major culprit in their breakdown appears to be the metabolite kynurenine, a byproduct of the essential amino acid tryptophan.
> [...]
> Over time, kynurenine piles up and appears to alter the dynamic of bone and muscle formation.
For those interested in such things, ConSource has a wonderful collection[0] of historical materials relating to the U.S. Constitution, including contemporaneous state constitutions, notes from states' ratification debates, and records from the Constitutional Convention.
On the Federalist Papers, my current obsession is Federalist 36, on the taxing power: "Let it be recollected that the proportion of these [direct] taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State..., a circumstance which effectually shuts the door to partiality or oppression."
Some context: any litigator will have access to Westlaw or Lexis-Nexis to look up and verify cited authorities like cases. It’s considered bad practice, at best, to cite authorities that one has not reviewed—for example, case citations drawn from a treatise or article.
As a practical matter, it is inconceivable to me that the attorney here, at least upon being ordered by the court to provide copies of the cases he cited, did not look them up in West or Lexis and see that they don’t exist. That he appears to have pressed on at that point, and asked ChatGPT to generate them—which would take some pointed prompting—was just digging his own hole. That, more than anything, may warrant professional discipline.
Impressive! I asked, "How did oral argument go in that home equity theft case?" The case, Tyler, was argued in the Supreme Court yesterday.
The response, while brief, lines up with my read of the transcript:
The oral argument in the Supreme Court case Tyler v. Hennepin County indicated that the justices were likely to rule in favor of the homeowner's property rights.
Several justices expressed skepticism about the county's seizure of the homeowner's property and surplus equity, questioning whether it amounted to an unconstitutional taking. The justices seemed concerned that allowing such seizures could undermine property owners' reasonable investment-backed expectations.
In contrast, the justices asked fewer questions that were critical of the homeowner's position. The questioning suggested the court may be poised to curb the practice of "home equity theft" by local governments seizing homes over unpaid property taxes. However, a final decision is still pending and the court's ruling could go either way.
You're GPT famous now. The response as of Apr 28, 2023:
Oral argument indicates property rights likely to prevail in that home equity theft case.
The Supreme Court seemed sympathetic to the homeowner Geraldine Tyler in her dispute over Hennepin County seizing her home. The case is the last oral argument of the Supreme Court's term.
Impressive! I asked, "How did oral argument go in that home equity theft case?" The case, Tyler, was argued in the Supreme Court yesterday.
In other news, x is supposed to be pronounced either sh or h(j). Don Quishote or Mehico (originally Meshicl.) Latinish still gets my vote.
Regardless of your opinion of the word, a descriptivist will acknowledge that a subset of people ARE using the word, and that its use should be documented. And thus, needs a pronunciation. Even if at the moment it appears to be mostly tribal signaling.
The part of mirrord that's affected by SIP is the client. This is meant to be run by users on their development machines (we could ask them to disable SIP, but would rather not for obvious reasons).
First, the court was not asked to reconsider the meaning of the First Amendment. In the US, we generally hew to the rule of "party presentation," which generally provides that courts will consider the parties' arguments, not make up new ones on their own.
TikTok's claim was that application of the statute in question to it violated the First Amendment's clause that "Congress shall make no law...abridging the freedom of speech." The Supreme Court has considered the interpretation and application of that clause in...well, a whole lot of cases. TikTok asked the court to apply the logic of certain of those precedents to rule in its favor and enjoin the statute. It did not, however, ask the court to reconsider those precedents or interpret the First Amendment anew.
Since the court was not asked to do so, it's no surprise that it didn't.
Second, as noted, the court has literally decades' worth of cases fleshing out the meaning of this clause and applying it in particular circumstances. Every textualist, so far as I'm aware, generally supports following the court's existing precedents interpreting the Constitution unless and until they are overruled.
Third, even if one is of the view that the Court ought to consider the text anew in every case, without deferring to its prior rulings interpreting the text, this would have been a particularly inappropriate case for it to do so. A party seeking an injunction, as TikTok was, has to show a strong likelihood of success on the merits. That generally entails showing that you win under existing precedent. A court's expedited consideration of a request for preliminary relief is not an appropriate time to broach a new theory of what the law requires. The court doesn't have the time to give it the consideration required, and asking the court to abrogate its precedents is inconsistent with the standard for a preliminary injunction, which contemplates only a preview of the ultimate legal question, not a full-blown resolution of it.
Fourth, what exactly was the court supposed to do with the text in question, which is "abridging the freedom of speech"? The question here is whether the statute here, as applied to TikTok, violates that text. Well, it depends on what "the freedom of speech" means and perhaps what "abridging" means. It's only natural that a court would look to precedent in answering the question. Precedent develops over time, fleshing out (or "liquidating," to use Madison's term) the meaning and application of ambiguous or general language. Absent some compelling argument that precedent got the meaning wrong, that sort of case-by-case development of the law is how our courts have always functioned--and may be, according to some scholars, itself a requirement of originalism.