Chaos at EPA? Current Supreme Court case shows the danger of a far right majority

Neil Gorsuch

Supreme Court expert Ian Millhiser of Think Progress has a fascinating and troubling post today about the kind of damage that the Court could do in the near future with a 5-4 majority under the crusading, ideological leadership of Neil Gorsuch. In “Want to know how badly Republicans on the Supreme Court will overreach? Watch this one case.,” Millhiser explains, the Court could unleash an “earthquake that upends much of the federal government and throws offices like the Environmental Protection Agency into complete and utter chaos.”

It turns out that there’s a widely accepted principle of constitutional law that limits how much authority Congress can delegate to the executive branch. When interpreted with some measure of common sense, the rule bars the complete delegation of authority — as happened many decades ago when Congress gave the Roosevelt administration unfettered discretion to regulate prices in various industries — without hamstringing federal agencies as would happen if, say, the EPA had no discretion to mandate “the best system of emission reduction,” as it currently enjoys with respect to certain polluters.

Unfortunately, Neil Gorsuch seems to like the idea of removing discretion from agencies like EPA. Hence, if he gets his way, a current case (Gundy v. the United States) about delegation of authority under an obscure law that regulates sex offenders could wind up providing the key the sowing chaos at agencies like the EPA. Here’s Millhiser:

So Gundy should be an easy and insignificant case. In drafting SORNA [the Sex Offender Registration and Notification Act], Congress appears to have committed a rare violation of an obscure constitutional doctrine. And there appears to be bipartisan agreement that this is the case.

Yet Gundy is also a dangerous case because it gives the Court’s right flank a vehicle it could use to radically limit federal power.

In 2015, federal appellate Judge Neil Gorsuch criticized the very provision of SORNA that is now before the Supreme Court. Along the way, he suggested expanding the nondelegation doctrine in ways that would make it nearly impossible for the United States to have very basic environmental laws, among other things.

In his 2015 opinion, Gorsuch gave a handful of examples of what he views as permissible delegations of power from Congress to the executive. If Congress provides “that margarine manufacturers must pay a tax and place a stamp on their packages showing the tax has been paid,” Gorsuch wrote, “Congress may leave to the President ‘details’ like designing an appropriate tax stamp.” Similarly, Congress could provide that certain restrictions on an industry may be triggered by a “factual finding by the President.”

But it is far from clear that Gorsuch would allow federal agencies to do much more than do graphic design or make narrow fact findings. It is very far from clear, for example, that he would let EPA determine what is “the best system of emission reduction” that must be used by certain power plants.

There is, in other words, an easy way to decide Gundy, and a hard way. There is a way that has very few implications for future cases, and there is a way that could destroy much of the federal government’s ability to function.

Which path the Court’s Republicans pick in this case will give us a very good window into how aggressively they plan to reshape the law if someone like Brett Kavanaugh joins their ranks.



The hard and oft-ignored truth about NC that hurricanes keep revealing

Be sure to check out the marvelous op-ed that appears in this morning’s edition of Raleigh’s News & Observer by Greensboro anti-poverty activist Gwen Frisbie-Fulton.  In “We look away from the flood of poverty,” Frisbie-Fulton details some of the harsh realities and choices that hurricanes (and the floods they so often spawn) inflict on the people inhabiting the lowlands of our state — who are almost always people of low wealth an income. After detailing the temporary excitement that hurricanes bring to those of us who live comfortable lives, the author puts it this way:

“We look away from the flood we know is coming. The slow seep of water down from the mountains, spreading out of its riverbed path, breaking out of creeks and cricks, rushing off the pavement of cities and heading Down East. The water swallows up crops and homes and pigs. We know this slow seep is not just water, but poverty.

We try not to speak of it. The smeared red clay on living room walls. Stalled out Buicks getting their last rust. Somebody’s work tools sinking into the river. Humid air plastering an old Myrtle Beach t-shirt onto a body as it shovels filthy toys into trash bags. It is mud and muck and poverty. And we know it’s coming. It’s all very predictable. So we look away.

Poverty has always been a flood and not a hurricane. It’s always been a slow, rolling disaster, with muddy gray water under an incongruent bright blue sky. It’s always been a slow build of mold between generations, of people making do with babies in faded red milk crates floated on mattresses down city streets. Look away.

Poverty is slow. It’s a looming light bill and a long wait on child support. It’s the uncomfortable plastic chairs at DSS and the caseworkers who don’t make eye contact. It’s the 10 months of pregnancy with no insurance and lying to the doctor about the cramps because you can’t afford a referral. It’s the long wait in jail because you can’t afford bail and long Christmas days when you can’t afford presents.

It’s the long nights with the heat out and the long calls trying to reach the landlord. It’s the hours in detention after your own boss at the meat processing plant calls immigration on you and the long stare you give him while he hires your cousin for less money under the table. Sometimes poverty is even the long last minutes trying to get through the locked door at the Hamlet Chicken Plant. So we look away.

Poverty is predictable. Read more

Commentary, Environment, Legislature, News, Special Session

The week’s top stories on Policy Watch

1. Coal ash flowing like pudding in Neuse River near Duke’s Goldsboro power plant
Matthew Starr had paddled only a half mile of a stretch of Neuse River near Duke Energy’s HF Lee plant in Goldsboro when he saw initial signs that something had gone very wrong.

“There was exposed coal ash on trees, floating in the river, on the road,” said Starr, the Upper Neuse Riverkeeper. “There was coal ash lying the ground. We scooped it up out of the water.”

Flooding from Hurricane Florence had drowned two inactive coal ash basins in five feet of water. The active basins, according to state regulators, were structurally sound, but the Half Mile Branch Creek, according to images published by the Department of Environmental Quality (DEQ), was flowing through the inactive basin complex, which is covered in trees and other vegetation.[Read more…]

2. Tillis, Burr and other Kavanaugh supporters must cling to one or more of four very troubling beliefs
The sordid saga of Judge Brett Kavanaugh and his nomination to serve a lifetime appointment on the United States Supreme Court is quickly careering toward some sort of very explosive and disturbing conclusion. Either the conservative jurist will be confirmed despite repeated allegations of dishonesty and past incidents of sexual violence or his nomination will be withdrawn or rejected based on those same allegations. In either instance, it’s a sad and remarkable state of affairs.
It’s the sexual assault allegations that have really seized the news headlines in recent days. The first allegation involves Dr. Christine Blasey Ford, a California college professor and clinical psychology instructor, who says that Kavanaugh sexually assaulted her at a high school party more than 35 years ago while his buddy, Mark Judge, looked on. At last word, the Senate Judiciary Committee was scheduled to receive testimony from Ford later this week. [Read more…]

3. A word to the General Assembly: This time, keep the politics out of hurricane relief
“Both the House and the Senate, our hearts go out to all the folks that were affected by Hurricane Florence,” Rep. Craig Horn, a Union County Republican, said Monday as a handful of GOP power-players visited a storm-wracked Wilmington.
Horn promised Senate and House leaders in the North Carolina General Assembly were toiling away behind the scenes on a relief package, one so badly-needed for portions of the state submerged by Hurricane Florence and its watery aftermath.

And top Republicans like House Majority Leader John Bell say the agenda will be limited when they return next week for an emergency session, with a focus on relief funding, teacher pay and the school calendar in districts shuttered by the storm. [Read more…]

4. A tale of two stories: price gouging in NC from consumers, business perspectives
For most, news of an impending hurricane means picking up some bread and an extra case of water, fueling up the gas tank and deciding whether to evacuate.

For some businesses though, that same news means dollar signs – it creates an opportunity to take advantage of desperate people planning for the worst.

The North Carolina Attorney General’s Office has received more than 700 reports of price gouging – a prosecutable crime – since Sept. 7, when Gov. Roy Cooper declared a state of emergency in anticipation of Hurricane Florence. [Read more…]

5. Update from Robeson County: Florence wreaks havoc on already struggling and neglected communities
Huge pools of standing flood water still surround houses in south Lumberton’s Turner Terrace neighborhood, drawing roving clouds of mosquitoes.

Downed power lines float in the deep brown pools and lay tangled in the many fallen trees.

The stench of sewage is oppressive.

Still, many of its residents want to come home.

Adrienne Kennedy’s family has lived in this lower income Black neighborhood for three generations. But like many of her neighbors, she had to leave after Hurricane Matthew in 2016. Flood damage and pervasive mold drove her and her two young sons to Fayetteville, where they still live as what she calls “climate refugees.” [Read more…]

6. Hurricane Florence is exposing North Carolina’s racial and geographic inequalities
Hurricane Florence tore through the Carolinas, leaving entire cities devastated, claiming dozens of lives, and doing what will likely be billions of dollars in damage. But this hurricane has exposed much more than tree roots and the foundations of homes — it has exposed the gross and growing inequality embedded in our state.

For years, eastern North Carolina has been home to some of the state’s most impoverished towns and communities. In 2016, 19 of the 20 poorest counties in the entire state were all located in the east. In addition to poverty, eastern North Carolina is also home to some of the state’s hungriest communities. In 2016, more than 300,000 people in the 18 counties declared disaster areas did not have enough food to eat each night. [Read more...]

Commentary, What's Race Got To Do With It?

Kavanaugh nomination: Uncomfortable shadows of the past

Early on in the the nomination of D.C. Circuit Court Judge Brett Kavanaugh to fill the current vacancy on the Supreme Court, political researchers exploring Kavanaugh’s likely ideological ranking on the political spectrum placed him right next to Justice Clarence Thomas, suggesting affinity between the two when it comes to how they would act on the court.

The current sexual assault accusations against Kavanaugh invites a second comparison about what they might have in common even off the court–namely, their denigration of women–and the Republicans’ consistent willingness to overlook it. There are obvious parallels between the way current GOP leaders and the President are treating the current accuser, Dr. Christine Blasey Ford, and Anita Hill, who emerged in 1991 with sexual harassment claims during the Thomas confirmation process.

Decades after Anita Hill made the words “sexual harassment” common language and just a year after the #MeToo movement brought down titans in the business, political and entertainment sector, Republicans are still jeering and dismissing sexual assault and misogyny instead of stopping it. President Trump–as though tweeting from a time warp–is predictably blaming the survivor and dismissing Ford’s trauma since she didn’t broadcast it the day it happened. Kavanaugh’s second accuser, Deborah Ramirez, may even be denied the opportunity to testify before Senators.

The Republicans’ response to these devastating accusations against their nominee is part of an overall pattern to turn the back the clock for women. The implications for our nation’s future are dire, particularly for poor women and women of color who will face the greatest consequences if we end up with another Clarence Thomas on the Supreme Court.

Activists worried about the fate of Roe v. Wade have mailed thousands of coat hangers to Senator Susan Collins, a critical deciding vote on the Kavanaugh nomination, signaling their concerns about rewinding the era of back alley abortions.

North Carolina women share these concerns but, frankly, we’re more worried about hand-cuffs than coat-hangers these days, since access is a bigger issue than safety for most women. Today, nearly half of all abortions today are conducted with FDA-approved medications, not surgery.  Studies show that medication abortion is incredibly safe resulting in complications in fewer than .4% of cases. In some states, over half the abortion are already conducted using pills at home, not on a table in a clinic. Read more


The Kavanaugh nomination should have never even gotten to this point

At this writing, the nation is transfixed by the spectacle of a group of conservative old men and their last-minute hired help acting like prosecutors toward a brave woman who has literally put her life on the line in order to try and see that justice is done in the Supreme Court nomination of Brett Kavanaugh.

It should never have had to come to this. The simple fact is that Kavanaugh should never have gotten this close to the Court because, as Ian Millhiser of Think Progress put it so succinctly this morning, Brett Kavanaugh is “an existential threat” to the institution:

Here is what the future will almost certainly look like if Judge Brett Kavanaugh becomes Justice Brett Kavanaugh.

Some time very soon, possibly in the next several months, six men and three women will meet in a room within the Supreme Court building, and five of the men will vote to eliminate the constitutional right to an abortion. While there is some uncertainty about whether the Court will overrule Roe v. Wade outright, or hand down a more dishonest decision that allows states to ban abortion in underhanded ways, there is no reasonable uncertainty about how Kavanaugh will vote on abortion.

The five votes to end the right to an abortion will include Justice Clarence Thomas, who almost certainly sexually harassed Anita Hill, and Brett Kavanaugh, who now faces multiple allegations of sexual assault and similar behavior.

Mull this potential future over as you also ponder Alexander Hamilton’s words from The Federalist #78. “The judiciary,” Hamilton wrote, “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Courts “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

The Supreme Court does not enforce its own opinions. The entire judiciary largely depends on voluntary compliance from losing litigants. It is an institution built entirely on trust. Even when we disagree with their decisions, Americans generally obey the courts.

Which is why civil rights lawyer Sasha Samberg-Champion is asking exactly the right question about Kavanaugh’s confirmation process.

“A reminder that, as compelling as much of the evidence is, the Senate’s constitutional role is not to adjudicate whether Judge Kavanaugh committed any particular offense. Nor is it well suited to do that, as should be obvious by now….The real question should be whether confirming this nominee under these circumstances permits the Court to play the institutional role that it is assigned — to adjudicate major controversies and have its decisions respected, even if grudgingly.”

The Supreme Court will not just weigh the future of reproductive freedom, an issue that obviously has a huge disproportionate impact on women. In recent years it sabotaged the rights of women who are sexually harassed by their bosses, and tried to strip many women of their ability to sue for equal pay for equal work. This coming Tuesday, it will hear a major case involving sex offenders.

Ask yourself if you trust Brett Kavanaugh to be an impartial judge in any of these cases, given the credible allegations he now faces.

If the American people lose faith in the judiciary, Congress and the president have an array of tools they can use to bring the courts to heel. They can pack the Court — adding additional justices to its ranks in order to neutralize Kavanaugh’s vote. They can potentially strip the courts of jurisdiction over certain cases. They can wipe out the Supreme Court’s budget, strip its judges of their staff and their law clerks, and reassign the Supreme Court building to the Department of Labor’s Women’s Bureau. Read more