Supreme Court has voted to overturn abortion rights, draft opinion shows

[The Larch]

W. Virgina Vs. EPA is in, guess the result.

US supreme court hobbles government power to limit harmful emissions
Court sides with Republican states as ruling represents landmark moment in rightwing effort to dismantle 'regulatory state'

The US supreme court has sided with Republican-led states to in effect hobble the federal government's ability to tackle the climate crisis, in a ruling that will have profound implications for the government's overall regulatory power.

In a move that will seriously hinder America's ability to stave off disastrous global heating, the supreme court, which became dominated by rightwing justices under the Trump administration, has opted to support a case brought by West Virginia that demands the US Environmental Protection Agency (EPA) be limited in how it regulates planet-heating gases from the energy sector.

The case, which was backed by a host of other Republican-led states including Texas and Kentucky, was highly unusual in that it was based upon the Clean Power Plan, an Obama-era strategy to cut emissions from coal-fired power plants that never came into effect. The Biden administration sought to have the case dismissed as baseless given the plan was dropped and has not been resurrected.

Not only was this case about a regulation that does not exist, that never took effect, and which would have imposed obligations on the energy sector that it would have met regardless. It also involves two legal doctrines that are not mentioned in the constitution, and that most scholars agree have no basis in any federal statute.

However, the supreme court has sided with West Virginia, a major coal mining state, which argued that "unelected bureaucrats" at the EPA should not be allowed to reshape its economy by limiting pollution – even though emissions from coal are helping cause worsening flooding, heatwaves and droughts around the world, as well as killing millions of people through toxic air.

It is the most important climate change case to come before the supreme court in more than a decade.

But the ruling could also have sweeping consequences for the federal government's ability to set standards and regulate in other areas, such as clean air and water, consumer protections, banking, workplace safety and public health. It may prove a landmark moment in conservative ambitions to dismantle the "regulatory state", stripping away protections from Americans across a wide range of areas.

It could fundamentally change what the federal government is and what it does.

Several conservatives on the court have criticized what they see as the unchecked power of federal agencies, concerns evident in orders throwing out two Biden policies aimed at reducing the spread of Covid-19.

Last summer, the six-to-three conservative majority ended a pandemic-related pause on evictions over unpaid rent. In January, the same six justices blocked a requirement that workers at large employers be vaccinated or test regularly for the coronavirus and wear a mask on the job.

The Biden administration was supported in the EPA court case by New York and more than a dozen other Democratic-led states, along with prominent businesses such as Apple, Amazon and Google that have called for a swift transition to renewable energy.

The administration has vowed to cut US emissions in half by the end of this decade but has floundered in its attempts to legislate this outcome, with a sweeping climate bill sunk by the opposition of Republican senators and Joe Manchin, the centrist Democratic senator from West Virginia.

The federal government also had the power of administrative regulations in order to force reductions in emissions but the supreme court ruling will now imperil this ability.

[HVC]

Sometimes I wish the god republicans love so much was real. We're due for a flood to start over.

[alfred russel]

Who has proposed that expansive interpretation?

Is there some place in America where there is an absolutely denial of anyones ability to bear arms?

The case in question certainly has zero bearing on such an expansive strawman.

If you can't open carry and you can't conceal carry that few people will get permits to and have subjective standards, you can't really bear arms can you? I think the laws in question do indeed effectively prevent the vast majority of the population from bearing arms. That isn't a strawman. I think the vast majority of people in New York state would be legally prevented from waking up some morning and carrying around a gun during their day.

I personally think that is a very reasonable state of affairs. But our ability to bear arms is definitely infringed.

[bogh]

Does it sometime feel like people are hiding behind the constitutional argument? If you think everybody should be packing heat, just say so and campaign on that politically. Pointing at the constitution and saying "out of my hands, this thing says everyone should have a gun" feels pretty weak.

The almost biblical approach (both in terms of respect accorded to it and stuff like textualism) to the Constitution is also pretty confusing to most outsiders. We've amneded our constitution multiple times and rely heavily on common sense interpretation of it to make stuff work.

[The Minsky Moment]

Justice Kagan in dissent

Some years ago, I remarked that "[w]e're all textualists now."  . . . It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the "major questions doctrine" magically appear as get out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.

Ouch

[The Minsky Moment]

Does it sometime feel like people are hiding behind the constitutional argument? If you think everybody should be packing heat, just say so and campaign on that politically. Pointing at the constitution and saying "out of my hands, this thing says everyone should have a gun" feels pretty weak.

The almost biblical approach (both in terms of respect accorded to it and stuff like textualism) to the Constitution is also pretty confusing to most outsiders. We've amneded our constitution multiple times and rely heavily on common sense interpretation of it to make stuff work.

It's the American way.  Many disputes about policy and political principles are cast as - or devolve into - debates over the meaning of the Constitution.

The US is not based on blood, soil, or a legendary history.  The Constitution is the relic that represents the nations foundational constitution of itself.  It is the secular version of American holy writ.

[alfred russel]

Does it sometime feel like people are hiding behind the constitutional argument? If you think everybody should be packing heat, just say so and campaign on that politically. Pointing at the constitution and saying "out of my hands, this thing says everyone should have a gun" feels pretty weak.

The almost biblical approach (both in terms of respect accorded to it and stuff like textualism) to the Constitution is also pretty confusing to most outsiders. We've amneded our constitution multiple times and rely heavily on common sense interpretation of it to make stuff work.

The two are totally connected. I'm sure if you poll the question "should abortion be legal?" and "is there a constitutional right to abortion?" almost everyone will answer the question the same way. The problem is that it is almost impossible to amend the constitution, and the framework of the US was set up to make it incredibly difficult to pass laws. I don't think either side of the abortion debate could get a truly sweeping law through congress right now and signed into law - either protecting or prohibiting abortion. So the courts become the means to get stuff done (or block stuff).

[The Minsky Moment]

If you can't open carry and you can't conceal carry that few people will get permits to and have subjective standards, you can't really bear arms can you?

Of course they can bear arms. NYS has plenty of hunters and sportsmen who carry and bear arms. Always has.

[Sheilbh]

Does it sometime feel like people are hiding behind the constitutional argument? If you think everybody should be packing heat, just say so and campaign on that politically. Pointing at the constitution and saying "out of my hands, this thing says everyone should have a gun" feels pretty weak.

The almost biblical approach (both in terms of respect accorded to it and stuff like textualism) to the Constitution is also pretty confusing to most outsiders. We've amneded our constitution multiple times and rely heavily on common sense interpretation of it to make stuff work.

Yeah although I think there's two sides to that.

Part of it is, I think, a consequence of or maybe a reaction to the rights revolution which was achieved through the courts. I think it makes sense if you are coming at an issue from a position of political weakness: liberals in the 50s and 60s; wanting to ban abortion or have no gun control now. Because a courts-based approach to winning change can be way more effective than you're likely to get through political organising and activism - the downside is you might win huge leaps forward but you are vulnerable to huge leaps back too. My view is that I think it can be a useful tool - but you also need to keep the infrastructure of politics in place. Use the courts but make sure you have campaign organisations, activists etc to take advantage of political opportunities too - and I think an important part of this story, especially at the state level, is that the right have done that better than the left in recent years.

The other bit is that I do think the constitution is just a strange civil religion in the US. It is basically not a model that literally anyone else would copy. And the veneration for it I think is part of the problem the US has right now because it is from the constitution that you have the tools for domestic political paralysis (plus huge power for the President in foreign policy). I think Obama, Sanders, Trump are all products of dissatisfaction with how the system is working - but the thing no-one can say is that a big chunk of the issue isn't who's being elected but that they're operating in a system that is dysfunctional but revered.

[grumbler]

Cool, but the single sentence of the second amendment has two parts. The second has a clear meaning:

" the right of the people to keep and bear Arms, shall not be infringed."

The other is adding confusion, and i've said what i think was going on from a historic perspective, but we are committed to a textualist approach here.

"A well regulated Militia, being necessary to the security of a free State,"...

A logical perspective would be that this is an explanation for the purpose of the other clause. What I don't think is a strong argument is that this ambiguous portion of the amendment should be so expansively interpreted so that the vast majority of "the people" are unable to "bear arms"--a right explicitly granted in the other portion. Just focusing on the text of the amendment, i don't think you get there unless that is where you want to end up.

Nothing in the second amendment requires that Congress pass laws such that "the vast majority of "the people" are unable to "bear arms"".  The second amendment, by its wording and the historical context, clearly refers to the protection of the right of the people to have a "well-regulated militia."  One cannot get to the individual-right interpretation unless one just ignores the stated purpose of the Second Amendment and the writings of the time around why it was needed. 

It is ironic that one of the reasons why modern people feel that they can ignore portions of the second amendment to avoid contradicting their chosen re-interpretation of the rights it confers is that the Second Amendment was utterly uncontroversial when it was proposed and ratified.  At the time, everyone knew what a well-regulated militia was and why it was needed, and therefor recognized the need to amend the Constitution to ensure that the federal government could not take away the protections provided by having such a militia.  Not even the anti-Federalists argued against it. 

So, there isn't much contemporary writing about the amendment itself.  All of the twisted logic arguments came when people decided that they wanted to reinterpret the second amendment as an individual right; a course that every USSC followed throughout US history until the elevation of Scalito to the court provided the fifth member of the conservative activist wing of the court (at least on this issue; Kennedy was an activist on the anti-conservative side when his adoration of individual rights required it).

[The Brain]

How does this Heller++ new Second Amendment allow a state to restrict an individuals right to own and carry a machine gun? Light mortars? MANPADS?

How about handguns that are designed to evade metal detectors?

It always struck me as weird that an amendment about a militia doesn't include military weapons. For a militia to be effective requires access to military weapons. Whether the imagined enemy is an army raised by the federal government or a foreign power, you need military weapons to fight them. These days this means weapons up to and including nuclear weapons.

[Berkut]

Who has proposed that expansive interpretation?

Is there some place in America where there is an absolutely denial of anyones ability to bear arms?

The case in question certainly has zero bearing on such an expansive strawman.

If you can't open carry and you can't conceal carry that few people will get permits to and have subjective standards, you can't really bear arms can you? I think the laws in question do indeed effectively prevent the vast majority of the population from bearing arms. That isn't a strawman. I think the vast majority of people in New York state would be legally prevented from waking up some morning and carrying around a gun during their day.

I personally think that is a very reasonable state of affairs. But our ability to bear arms is definitely infringed.

That is odd. I live in New York and know lots and lots of people who own and bear a variety of arms all the time.

Which New York are you talking about?

[The Minsky Moment]

It always struck me as weird that an amendment about a militia doesn't include military weapons. For a militia to be effective requires access to military weapons. Whether the imagined enemy is an army raised by the federal government or a foreign power, you need military weapons to fight them. These days this means weapons up to and including nuclear weapons.

AS grumbler indicated in his comment above, this issue arose in a very specific historical context.  There was a very lively debate both before and after the Revolution about the relative efficacy of, and relative benefits and dangers of, state and local militias vs. regular troops under national command.  That debate was not definitively resolved, the Constitution memorializes a compromise between the two.

A big knock on militias was that they weren't well organized, equipped or disciplined.  The Militia clause in Article I of the constitution addresses the organization and discipline issue. But equipment was a big problem - during that era, a very high percentage of militiamen were unable to muster with a properly maintained musket fit for military use. 

One common revolutionary era law relating to firearms were laws requiring all adult males eligible for militia service to keep and maintain a musket fit for militia service.  This was not regarded as a treasured individual right but rather as an annoying financial imposition.  However, from the POV of the state government, this was a useful power to have, without interference from federal authority.

Another regulation of the era, especially in the northern cities, were rules placing strict limits on the amount of powder that could be kept.  Excess powder had to be kept in government-controlled warehouses.  I can't imgaine how the NRA would react today to such law - e.g. imagine if Boston or Philly passed a law saying that people could only keep 2 magazines of ammo on their persons or houses, and had to deposit the rest in a government warehouse.  But such a rule would satisfy Thomas' requirement of a regulation understood to be consistent with common law rights at the time the Amendment was enacted.

The point is that if the amendment had a particular meaning and significance in a particular historical context that doesn't exist anymore.  The originalist conceit that one can simply transplant one historical context to another inevitably leads either to nonsensical results or to Kagan's pick and choose, "get-out-of-text free card" critique.

[grumbler]

It always struck me as weird that an amendment about a militia doesn't include military weapons. For a militia to be effective requires access to military weapons. Whether the imagined enemy is an army raised by the federal government or a foreign power, you need military weapons to fight them. These days this means weapons up to and including nuclear weapons.

The well-regulated militia in the US is known as the National Guard.  It has officers appointed by the state government, is under the command of the state governor unless called into Federal service, but has to meet the standards required of its organization, training, and equipment by Congress.  NG units have military weapons and equipment at most one generation behind those of the standing army.

[Crazy_Ivan80]

Sometimes I wish the god republicans love so much was real. We're due for a flood to start over.

Floods are indiscriminate, smiting is much more precise