Filed under: Domestic Policy, Energy, Law, Regulation | Tags: Enviromental Zealots, Michiga v EPA, Supreme Court
In the case of Michigan v. EPA, the Supreme Court addressed a matter that is genuinely outside of voter’s control, the way-too-rapid expansion of the regulatory state. The problems all began with the Clean Air Act and the Clean Water Act. The problem seemed simple to Congress. We want clean air and clean water, and that’s what the EPA should be doing.
But the EPA is an agency filled with environmental activists and zealots, fully in line with Obama’s unwarranted belief in a dangerous global warming, and sure that the correct answer is to get rid of fossil fuels, carbon dioxide as a pollutant, and carbon in general. The answer is to force Americans to want to rely clean energy sources like solar and wind, with no understanding that solar and wind do not produce enough energy to be a significant source of power.
The EPA wants to force all coal-fired power plants to either shut down or do a lot or retrograding to eliminate any emissions from that nasty fossil fuel. Around 40 percent of our electricity is supplied by coal-fired power plants. The EPA’s new regulations would cost $9.6 billion annually, but the EPA claimed that it was appropriate to consider only public health risks. Well, nobody seems to know if there actually are any public health risks. They always put asthma at the top of their list of future childhood death, but the medical profession does not currently know what causes asthma, so that is a complete canard. By some estimates the cost of electricity would go up by as much as $1,200 per year for every American household.
The majority opinion, authored by Justice Antonin Scalia, found that the EPA “unreasonably” interpreted the Clean Air Act to constitute a vehicle by which the environmental regulatory agency could institute new guidelines that were all but overtly aimed at shuttering “dirty” power plants. “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants,” the opinion read. That’s significant; contrary to the wealth of shallow emotionality that suffices for modern political commentary, profits matter. Individual livelihoods and the economic health of the nation are still protected by the Constitution, and they should not be subordinated to environmental sustainability in the zero-sum game that has become America’s regulatory culture.
Filed under: Freedom, Law, The United States | Tags: Justice, Liberty, The Court
From the Archives, May, 2009
Lady Justice is the symbol of the judiciary. She carries three symbols of the rule of law: a sword symbolizing the court’s coercive power, scales representing the weighing of competing claims, and a blindfold indicating impartiality. This particular representation says:
Justice is the end of government. It is the end of civilized society. It ever has been, ever will be pursued until it be obtained or until liberty be lost in the pursuit.
The judicial oath required of every federal judge and justice says “I do solemnly swear (or affirm) that I…will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me… under the Constitution and laws of the United States, so help me God.
President Obama has a record of statements on justice. In September 2005, on the confirmation of Chief Justice John Roberts, Obama said:
What matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
During a July 17, 2007 appearance at a Planned Parenthood conference:
We need somebody who’s got the heart to recognize — the empathy to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.
During a Democratic primary debate on November 25, 2007, Obama was asked whether he would insist that any nominee for the U.S. Supreme Court supported abortion rights for women:
I would not appoint someone who doesn’t believe in the right to privacy…I taught constitutional law for 10 years, and when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they ruled. But it’s their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.
During a May 1, 2009 press briefing:
Now the process of selecting someone to replace Justice Souter is among my most serious responsibilities as president, so I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.
“Empathy” is the word that has caused so much concern. For empathy has no place in jurisprudence. Federal judges swear an oath to administer justice without respect to persons. If they are to feel more partial to the “young teenage mom,” the “disabled,” the “African-American,” the “gay,” the “old,” then they are not and cannot be impartial, and the rule of law counts for nothing. The “depth and breadth of one’s empathy” is exactly what the judicial oath insists that judges renounce. That impartiality is what guarantees equal protection under the law.
That is what the blindfold is all about.
Filed under: Domestic Policy, Law, The Constitution, The United States | Tags: Death Row, Power Plants, Redistricting
After finding something or other somewhere in the Constitution that recognized a national right to same-sex marriage and rewriting the Affordable Care Act to fix the actual language that Congress wrote into the law, there are still three more big decisions, which we will hear on Monday.
1. Execution Methods
Glossip v. Gross
At issue is whether the sedative midazolam presents an unconstitutional risk of severe pain in executions of condemned criminals. Three men on Oklahoma’s death row claim that midazolam, the anesthetic the state plans to administer before introducing paralytic and heart-stopping drugs to their bloodstreams, is unreliable, exposing them to an unconstitutional risk of severe pain as they are put to death.
2. Power-Plant Emissions
Utility Air Regulatory Group v. EPA et.al.
Issue: Whether the EPA unreasonably disregarded costs when it decided to regulate power plant emissions of mercury and other air toxins. The regulations would cost $9.6 billion annually, according to EPA estimates. But the agency said it was appropriate to consider only public health risks—not industry costs—when it decided to regulate coal- and oil-fired generation plants.
3. Congressional Redistricting
Arizona State Legislature v. Arizona Independent Redistricting Commission
Issue: Whether a state may transfer redistricting authority from the legislature to a nonpartisan independent commission. Arizona voters in 2000 passed a ballot initiative that shifted responsibility for drawing congressional districts from the state legislature to an independent redistricting commission made up of two Democrats, two Republicans and an independent.
Filed under: Domestic Policy, Freedom, Law, Politics | Tags: FIRE and Free Speech, Importance of Dissent, Steven Pinker
Steven Pinker is a Harvard psychology professor and bestselling author. Dissent plays a crucial role in keeping society sane. We have pluralistic influence making society crazy. It’s not what people actually think, it’s what they believe everyone else thinks too. Here he talks about Taboos, Political Correctness, and Dissent. Few are willing to be the little boy who stands up and says that the King is naked, and that’s the problem.
Filed under: Capitalism, Domestic Policy, Freedom, Law, Politics | Tags: FIRE and Free Speech, Jonathan Rauch, The Rise of the Crazies
Most of the idiocy about anything Confederate, anything critical of gay marriage, unisex bathrooms, comes from the Universities. When the Humanities have turned to Women’s Studies, Black Studies, Diversity and microaggressions and triggering, and for the most part dumped Shakespeare as another dead white male, it’s getting really weird out there. Apple has dumped all their military games that include the Civil War, Amazon. Walmart, eBay and Sears have all dropped any reproduction of the battle flag like a hot potato. University buildings must be renamed, statues and memorials are being defaced.
Book-burning comes next. They have already announced that Gone With the Wind must go, but that’s probably the only Civil War book they know, clearly they haven’t read any history. When the current hysteria dies down, we need to speak out, as Jonathan Rauch has long done, and is doing now in recognition of its importance.
The gift shop at the Gettysburg memorial has just eliminated the Confederate Battle Flag from their merchandise. Apparently we were fooled all along, it was just a maneuver where the Yankees fought Yankees, for what reason I don’t know.
Filed under: Capitalism, Democrat Corruption, Domestic Policy, Economy, Law, Politics, The United States | Tags: Barack Obama, Immigration, Legal and Illegal
Immigration is a touchy subject — minefields in every direction. We are a nation with borders and immigration laws, or at least we used to be. The president of the United States believes that American Immigration policies are not determined by the Constitution, nor by the laws of our country, but by his personal preferences. He apparently hopes to admit enough poor, non-English speaking illegal aliens from Central America and give them driver’s licenses, and thus the right to vote—to guarantee the next election, and future elections.
“Progressive,” “socialist,” and “liberal” are today interchangeable terms that describe participants in a moral crusade with a political agenda, usually referred to as “social justice.” It can be summed up as equality imposed by the state.The quest for a utopia of equals forges progressive alliances, defines their allegiances, and justifies the means they are willing to use to get there.They may differ on policies and tactics to advance the cause. But they are ever ready to subordinate their differences to achieve the common goal. Since the Democratic Party has become a party of the Left, progressive missionaries view it as the practical vehicle for making their idea a reality. They are willing to follow its marching orders because a political party that controls the state is the only way to achieve the goal. (David Horowitz: Take No Prisoners)
“Social Justice,” defined by the left as equality imposed by the state, is equality of the ordinary people out there, but the “progressives” proposing it view themselves as the state, those who impose equality, not those who actually participate in it. See the case of Hillary, who charges $300,000 for a half-hour speech (Bill gets $500,000) is clearly a paid-up member if the 1%, and excoriates corporate CEOs for making too much money, Which is not just silly, but major hypocrisy.
If we are going to have immigration laws, who should we let in? Everybody that wants to come? People who bring desirable skills? Refugees from the hell-holes of the world? The president can’t even get around to admitting the translators who worked with the U.S,Army in Iraq — whose lives are in danger from ISIS. That’s a disgrace. How many of the relatives of a new citizen should be admitted? People with significant assets? Degrees? Business owners? English speakers? People with no assets who will require welfare, food stamps, housing? Diversity? Ethnic origin? A large portion of the countries in the world are hell-holes.
A large percentage of the people of the world would like to come to America. If no immigration curbs are enacted, another 14 million immigrants will come to the U.S between now and 2025. That means adding a new population almost four times larger than that of Los Angeles in just 10 years time. But empathy, compassion, caring?
Businesses claim to need new immigrants, claim that immigrants have added much to American society, but when examined more closely, high-tech workers are being forced to train their replacements who will work for less money. One Silicon Valley company was paying legal Indian immigrants $1.24 an hour to work 100 hour weeks. There is currently a program that converts foreign college graduates back into foreign students so they can stay and work legally. That number soared to nearly 100,000 in 2013. Since they are defined by ICE as “students” neither the employer or the alien has to pay payroll taxes —so the United States pays a bonus of as much as $11,600 to an employer when they hire an alien graduate rather than a U.S.graduate with the same qualifications and the same salary.
Conservatives usually say they want the border controlled before we reform immigration laws and set quotas. They want the border fence completed. Scroll through this Google Images portrayal of the “Border fence With Mexico.” Mexico, by the way, is extremely offended by any border fence of ours, but anyone crossing into Mexico without permission may spend months in jail. They depend on remittances from illegals who have crossed into the U.S. to work to support their economy.
I welcome legal immigrants with open arms. Immigration is not a suicide pact. We have a right to determine who and how many and when we will admit immigrants. But deciding who and how many and under what circumstances needs to be decided on the merits — not by ;politicians who are trying to appeal to particular voting groups. And Legal immigrants must assimilate, renounce their former country and become Americans. Barack Obama is doing wrong, and doing great damage to the country. He needs to be stopped.
Filed under: Democrat Corruption, History, Law, Politics, Progressivism, Statism, The Constitution | Tags: Administrative Law, Philip Hamburger, The Constitution
This lovely paragraph is in Myron Magnet’s review of Philip Hamburger’s Is Administrative Law Unlawful? in City Journal, the magazine of the Manhattan Institute:
The world-historical accomplishment of the American Revolution, and of the Constitution that came out of it, Hamburger notes, was that they turned upside-down the traditional governmental model of “elite power and popular subservience.” Americans “made themselves masters and made their lawmakers their servants” through a Constitution that they themselves had made. They observed laws that had legitimacy because they themselves had consented to them, through representatives whom they themselves had chosen. And “they made clear that not only their executives but even their legislatures were without absolute power.” Citizens claimed for themselves the liberty to do anything that the laws didn’t expressly forbid, and that freedom richly nourished talent, invention, experimentation, specialization—all the human qualities that are the fuel of progress and modernity.
It struck me that much of what drives the Left is contained in that paragraph. What the Left aims for is elite power and popular subservience. Obama, today, in response to a Republican sweep of the 2014 election, has decided, instead of making an effort to work with Congress in a bipartisan manner, to conduct foreign policy and legislate all on his lonesome. Politicians, by their very nature have a healthy dose of self-esteem, and they choose their rhetoric carefully to place their accomplishments or lack of accomplishments in the best possible light. That’s just natural. But insisting that because you are President of the United States you can do whatever you want to do by executive order, ignoring the tripartite nature of our Constitutional government, is just wrong.
The Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. It is, Hamburger says, “forbidden for Congress to pass a law creating an executive branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. The power of the legislative’ as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is ‘only to make laws and not to make legislators.’ And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it—namely, the power to hand out selective exemption from its laws, which is what agencies do when they grant waivers.”
James Madison, architect of the Constitution saw the separation of powers as an essential bulwark of American liberty. Administrative agencies, however, make rules, carry them out, adjudge and punish infractions of them, and wrap up legislative, executive and judicial powers in one noxious unconstitutional mess. Judicial power cannot be delegated as legislative power, the Constitution puts all of it in the judicial branch. Unlike real judges, administrative judges carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. This is not a court, and not a law, and not legal. Yet they can and do order parties to appear before it, and extort millions of dollars in settlements, force companies to allow inspectors to enter their premises without warrants, and impose real criminal penalties. It can even kill a whole industry, as Obama’s EPA is attempting to do to the coal industry and the coal-fired power industry because the President mistakenly believes the carbon dioxide they emit is the cause of global warming.
Elites, particularly Leftist elites, do not like the Constitution which restrains their grasp for power. Many have accused Barack Obama of wanting to be a king. He laughs it off, and tries to pretend that his executive orders and executive notes and memorandums and signing statements are all perfectly constitutional, and adds, of course, that Bush did it.
Constitutional government is by its nature slow, designed to force new laws to be discussed and argued about, which will incline them to be better written and better law. But Congress, at some point got lazy, and felt it would speed things up if they just handed the administrative function in its entirety off to the assorted agencies of the government.
Thanks to Obama, we have a prime example of the failure of that whole endeavor in the Environmental Protection Agency. Good intentions come up against the nature of bureaucracy which is to grow and elaborate their mission and enhance their power. The Clean Water Act has long since accomplished it’s intent, and the EPA is vigilantly attempting to extend its regulating power to the trickles that flow into the ditches that flow into the creeks that flow into the streams that eventually flow into the “navigable waters,” the big rivers, that were originally given into their oversight. That’s pure power grab.
Congress must take back the legislative power assigned to it, agencies must shrink drastically in size, authority, and reach. They are not allowed to make law, administer law, investigate and judge law and assign penalties. Things have gotten so far out of whack that most, if not all, agencies have their own swat teams.
Part of the problem is that judges don’t know or understand the intricacies of the underlying facts of that which the agencies are attempting to regulate. Congress told the EPA that the navigable waters of the United States should be reasonably clean. The courts don’t necessarily understand where the dividing line for “enough” should fall.
Even while adhering to Supreme Court precedents about administrative power, they “remain free—indeed, [the courts] are bound by duty—to expound the unlawfulness of such power.” And at some point, Hamburger expects, the Supreme Court will have to man up and frankly state that what the Constitution says is the supreme law of the land.
And the people are going to have to let their representatives know that we care about the Constitution and our freedom, and are opposed to the administrative state.