U.S. Supreme Court
Turning Conservative Legal Theories Against Trump
Is the risk of legitimizing bad ideas worth it? Maybe so, under the circumstances.
Conservatives have been obsessed with the idea of a runaway federal government crushing everything in its path. They’ve been successful in promoting ideas to rein in Leviathan, at a time when by our lights the government actually was behaving very reasonably. But now we really do have a rampaging federal government. Conservative ideas could be very useful tools right now, and we shouldn’t hesitate to use them.
CONTINUE READINGThe Tariff Case & Environmental Law
The Court’s ruling could open doors legally for some future environmental actions.
In passing a new statute, is Congress endorsing judicial rulings under the old one? Do restrictions on the regulatory powers of administrative agencies apply to foreign affairs or Presidential actions? Can courts review a President’s emergency actions? The oral argument in the Trump tariff case will provide clues into the Justice’s thinking on these key issues. The ultimate decision will have implications on other topics like environmental law. Here’s a roadmap to the issues.
CONTINUE READINGHow “Passive Virtues” Destroy the Constitution
Judicial restraint has become a license for dictatorship.
Never has the adage that A Picture Is Worth A Thousand Words been more appropriate. Donald Trump has destroyed much of the federal government and much of the Constitution, so now he is destroying the White House – in this case, to build a horrific 90,000 square foot ballroom paid for by “private contributors,” who …
Continue reading “How “Passive Virtues” Destroy the Constitution”
CONTINUE READINGThe Legal Barricades Protecting State Climate Policy
The general legal landscape favors state regulatory efforts.
The upshot is that it will be very challenging for the Feds to overturn state emissions regulations of power plants and other facilities. The statutory and doctrinal landscape are favorable for states playing defense, and the Supreme Court seems if anything more favorable to the states than the national government. Of course, these general observations leave plenty of room for litigation over the fine points, and the Feds could win some cases. But the states start the contest with an advantage.
CONTINUE READINGLegal “Scholarship” and the Overproduction of Elites
What’s the point of writing about the Supreme Court when its only ideology is intellectual dishonesty?
Why do we even bother with this anymore? The New York Times breathlessly reports that the University of Virginia’s Caleb Nelson, a well-respected originalist scholar, has concluded that the “unitary executive theory,” long promoted by conservatives, is, well, bunk. “A bombshell!,” enthuses Will Baude of the University of Chicago, himself a well-respected originalist scholar – …
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CONTINUE READINGFirst Monday? More Like ‘First Moanday.’
Since conservatives got a supermajority on the Supreme Court, it’s been on an anti-environmental tear.
Never say never. Maybe someday the Court will surprise us with a big win for the environment. But it would be foolish to count on that. We can also hope that the Court will do other good things, such as reining in Trump’s executive overreach. But it would be foolish to count on the Court to take a stand in favor of environmental protection.
CONTINUE READINGNEPA Update: The Other Shoe Drops
A New D.C. Circuit Case reads the Seven County decision for all it is worth.
Based on the facts as set forth by the D.C. Circuit, its decision in the Tennessee Pipeline case may have been right. But the opinion went astray with its unrestrained enthusiasm for deference in NEPA cases, and its assumption that the same rules carry over in reviewing decisions under other statutes like the Natural Gas Act.
CONTINUE READINGThe Forgotten Constitution
There’s a lot more than the “executive power” in there.
To hear Trump & Co., you might think that the Constitution was one sentence long, with that sentence vesting the executive power in the President. That’s the theory behind his efforts to remake the government – including environmental regulation – single-handedly. But there’s a lot more in there. Much of that forgotten language is directly relevant to the presidential actions that are now shaking the government, including environmental governance.
CONTINUE READINGViolations of Free Speech at EPA
EPA employees were within their rights with the dissent letter they wrote.
I know it must be a shock to the Trump Administration that even lowly civil servants — I’m sure they would put the emphasis on “servants” — have rights that Important People like them are obliged to respect. But we still live in a democracy, and as the Supreme Court once said, government employees don’t leave their First Amendment rights at the door.
CONTINUE READINGThe Failed Effort to Protect Workers from Toxics: A Labor Day Reflection
The OSHA law called for rigorous regulation. It never happened.
To put it in a nutshell, the political base for workplace toxic regulation eroded along with America’s industrial unions. That deprived OSHA of the congressional support it needed to thrive. In the absence of a union revival, the right of workers to be free from toxic hazards is likely to remain an unfulfilled dream.
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