SCOTUS Makes Up New Administrtive Law Standards out of Thin Hot Air

Joining such renowned scientists as Leonardo DiCaprio and Al Gore, five justices of the Supreme Court have stepped into the realm of politics and policy, left aside any concept of Constitutional limits on judicial power or the rule of law, and declared themselves experts on the global climate. This absurd decision, Massachusetts v. EPA, which can only be explained by the 5 justices' policy preferences in this area (as opposed to their ability to dispassionately evaluate a factual record and the legal standards), contorts the state of the law radically to achieve a policy end. Shameful.

The Chief Justice's dissent is powerful, and hopefully, is an indicator of the future direction of the court when the 5 legislators-in-robes step aside from their usurpation:

If petitioners' particularized injury is loss of coastal land, it is also that injury that must be "actual or imminent, not conjectural or hypothetical," Defenders of Wildlife, supra, at 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (internal quotation marks omitted), "real and immediate," Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (internal quotation marks omitted), and "certainly impending," Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990) (internal quotation marks omitted).

As to "actual" injury, the Court observes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming" and that "these rising seas have already begun to swallow Massachusetts' coastal land." Ante, at 19. But none of petitioners' declarations supports that connection. One declaration states that "a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area," but there is no elaboration. Petitioners' Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a "significant" non-global-warming cause of Boston's rising sea level: land subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.

The Court's attempts to identify "imminent" or "certainly impending" loss of Massachusetts coastal land fares no better. See ante, at 19-20. One of petitioners' declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth's coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177-178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (while the concept of "'imminence'" in standing doctrine is "somewhat elastic," it can be "stretched beyond the breaking point"). "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, supra, at 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135. (internal quotation marks omitted; emphasis added).

At least the court only remanded to give the EPA another chance to explain their decision - Justice Stevens stopped short at crafting world-saving emissions standards for the EPA to implement. But as Justice Scalia notes:

Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 31. But EPA has said precisely that -- and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions[.] *** I simply cannot conceive of what else the Court would like EPA to say.

I've written on this before, when the DC Circuit made the correct legal decision. As I said then, "In addition to the activists and cities, no fewer than 12 States are plaintiffs here. That's 24 Senators and 151 Representatives - nearly a quarter of the US Congress! Surely they are not without political power. If those states wish to ensure the EPA is fixing global warming, the remedy is in the chambers of the Capitol, not in the courts."

The question is not whether or not global warming is a "crisis," or whether not the EPA should regulate car emissions. The question is whether five unelected judges should be able to dictate massive, unimaginably complex, economy-threatening policy over the objections of both the Executive branch and the Legislative branch, by taking a vague statute and assigning it meanings it couldn't possible have had when it was written.

There is no more inappropriate place for judicial law-making than in the realm global environmental policy. That five lawyers think they can or should go there, when actual experts struggle to predict what the climate will give us 10 days from now, is contrary to what the Constitution ever intended.

CORRECTION: Justice SteVens' name was misspelled above, and has been corrected.

The Pelosi Seven's Unconstitutional Globetrotting

"Upon the principles of a free government, inconveniences from [multiple personalities in government] must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious... In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality."

-- Federalist No. 70 (emphasis added)

"We have an alternative Democratic foreign policy. I view my job as beginning with restoring overseas credibility and respect for the United States."

-- Representative Tom Lantos (D-CA)

The danger inherent in Rep. Pelosi and her gang of seven's shameful trip to Syria was clearly foreseen by the framers of the Constitution. What Lantos doesn't understand is that how he views his job - and apparently how Pelosi sees hers - is directly at odds with the Constitution. In fact, how he "views his job" is irrelevant - his job description (at least as it relates to foreign policy) is pretty clearly laid out in the Constitution he swore to support and defend. In case he needs it spelled out, it doesn't include negotiations with foreign leaders in contravention of official US foreign policy.

The United States doesn't have separate Democrat or Republican foreign policies, it has A foreign policy. One. Period. And the execution of that foreign policy is the sole province of the President - the one the American people elected knowing full well he would be entrusted with that responsibility for the next four years, not the wanna-be one accountable to no one except a few hundred thousand hippies in the second smallest congressional district in the country.

It's bad enough when members of our government with more bombast than brains or influence do these kinds of things, like when Rep. McDermott went to Baghdad on the eve of war to show his support for terrorist-funding fascists over the President of the United States. This is the category in which I place the six shamefully seditious fools who followed Pelosi on her illegal errand, including the three Republicans. But when it's the Speaker of the House of Representatives, she's holding herself out as an alternative President - someone who will assure terror-sponsoring foreign leaders that they need not worry about the man in the White House who points out their evil or may impose sanctions. She's going as someone who announces - with credibility - that she has the power to thwart US interests and our Constitutional scheme, to the delight of our enemies. (And doing it while wearing a headscarf in submission to Islam, no less.) Whether that is her intent or not is irrelevant. She's aiding the enemies of freedom to the direct detriment of the people and the Constitution of the United States. What Jihadist can see one of the most powerful people in America treating a fascist terror leader as a statesman while wearing their religion's required attire and not believe victory over the blasphemy of liberal democracy is at hand?

This isn't a partisan issue, either. This is a precedent that, once set, can never go away. Imagine the howls that would have gone out from those now praising Pelosi had Newt Gingrich gone to negotiate with Slobodan Milosevic in between Clinton's ordered Tomahawk barrages. They would have been universal, loud, and correct. But not any more. There's no sanction for this beyond condemnation and outrage, short of a sedition charge (a card that sadly will never be played). If Pelosi gets away with this, we will forever have an "opposition foreign policy," with the party out of power seeking to undermine our own president in the halls of foreign governments.

Talk about the Constitution under assault.

Can any foreign power take a country seriously when independent factional heads each pursue their own foreign policies, each seeking to undermine the other? Lose tribal confederations do that, not Great Nations. Our Constitution gives us the method - we debate, then we decide, then one person acts with one voice beyond our shores. For two centuries, we've followed that model. Now the Speaker of the House (the only one of the seven with any real power, which is why her actions are the most worthy of scorn) has chosen to disregard that for her own short term ends. It's illegal and anti-American, and dangerous in the extreme at a time in history our lives and way of life depend on those who value freedom opposing theocratic fascism with one voice.

I can only hope the voters of this great nation choose to keep it so, and rebuke this behavior next year at the polls.

Separation of War Powers

A very good rundown/overview by Jeffrey Rosen on the Constitutional issues surrounding Congressional contemplations on Commander-in-Chief encroachment. (That's called alliteration, folks! Woo hoo!)

President Finally Gets Runaway Administrative Agencies Under Control

There is much wailing and gnashing of teeth about President Bush's new executive order achieving more direct oversight by the administration over various administrative agencies' rulemaking bodies. I say it's about time someone attempts to rein in this unelected, hopelessly bloated, inefficient, and largely unaccountable 4th branch of government.

Here's a great example of the criticism, which only makes sense if you completely ignore the Constitutional scheme or the importance of accountability to the voters:

Representative Henry A. Waxman, Democrat of California and chairman of the Committee on Oversight and Government Reform, said: "The executive order allows the political staff at the White House to dictate decisions on health and safety issues, even if the government'’s own impartial experts disagree. This is a terrible way to govern, but great news for special interests."

Waxman, of course, would much prefer that CONGRESS dictate decisions on health and safety issues. Or perhaps that unelected and un-fireable government bureaucrats dictate decisions on health and safety issues. (Anything that would prevent those nefarious businesses or incompetent ordinary people from makidecisionsons about their health and safety!) And I love the assumption that those who might disagree with the administration are necessarily "impartial." It's interesting how concerns about government intrusion never seem to apply

And then there is the sinisterism associated with "the political staff at the White House". The nice thing about "political staffs" is that they're accountable to voters through the executive. Elections should have consequences, but administrative agencies are almost impervious to them.

Administrative agencies are of questionable Constitutional legitimacy, I think, but even if Justice Thomas was cloned and appointed to the bench 8 times, they aren't going away. Therefore, because they clearly serve an executive function, they should be more closely administered by the executive. The elected, accountable executive. Any other option either gives too many executive powers to Congress, or leaves the bureaucracy to plow forward on its own - unaccountable, unrelenting, ever more intrusive, and ever harder to stop.

I'd like to see him go a step further - every federal agency and program should be carefully reviewed every ten years, just as military bases, units, and programs are, with an eye towards trimming them down, cutting them entirely, and looking at actual results rather than merely the feel-good-goals. Alas - cutting an EPA sub-agency that is sucking money without producing results makes total sense, and so it will die a quick death in Congress by people who will claim cutting such a program is "anti-environment."

I don't think Bush has the courage or political capital (or the desire, frankly) to go that far, but this executive order is a good step. It's about time a President attempted to wrestle this extra-Constitutional beast back under control.

Advice and Consent of the... SenatOR?

I don't know if it's just bad writing from a non-legally trained New York Observer journalist, but "Exultant Chuck [Schumer] Says He'll Veto the Next Alito" is either a grossly inaccurate headline, or reflects a poor grasp of the Constitution by the senior Senator from New York.

The bad writing/unconstitutional usurpation continues:

"Judges are the most important,"” said Mr. Schumer, who orchestrated the implausible Democratic takeover of the Senate last week. "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won'’t happen."

From now on, all the President'’s judicial appointments will need to meet the requirements of Mr. Schumer, the Park Slope power broker who has happily accepted the mantle of chief architect for the Democrats'’ effort to build a majority for the 2008 elections and beyond. (emphasis added).

The Constitution vests no veto power in an individual Senator. (It doesn't even vest it in the Senate as a whole.) It is the Senate as a body, not a single Senator (no matter how powerful) who gives only their "advice and consent." And it is the President, not the Senate, who was elected in part because the people preferred his judgment on judicial nominations. Judicial nominations weren't even really an issue (to the detriment of the GOP, in my opinion) in this election. Just as Republicans voted unanimously for Ruth Bader Ginsberg, a qualified jurist properly nominated by the President who was known to have a judicial philosophy conservatives didn't agree with, the Senate should be mindful of their secondary role in this important process. To do more is to usurp Executive authority the Congress is denied by the Constitution.

Interestingly, Schumer also announced that he will make sure "New York will soon be 'disproportionately' enjoying the spoils of last week's victory," and used the opportunity to peddle his book about building a permanent Democratic majority.

It's ironic that this was the reaction of a man who directed the Democratic takeover by running very socially conservative Democrats, attacking (rightly) Republican "earmark" abuse, and pointing out (also correctly) that one party rule for too long leads to arrogance and corruption of principles.

When Congress (or either if its chambers) begins adopting executive power, the balance of our system is lost. The founders vested complete executive authority with the President (as opposed to limited and enumerated powers with the Congress) for a reason. If Chuck Schumer wants that kind of power, he should at the very least stand for election as a Presidential candidate so he could exercise it legitimately. I'll remember this next time I hear liberals complain about "shredding the Constitution."

Executive War Powers - What Did You Think?

Was Professor Turner correct about the intended scope of the Executive near-monopoly on war powers? Even if he was, should a "living constitution" limit those powers now? Can we trust Congress to act decisively or with necessary secrecy in the arena of foreign affairs? Tell us what you thought.

For my part, I want to note that anyone who had Professor Allen for 1L Constitutional Law did, in fact, discuss the power of the Constitution's command that "The executive power shall be vested in a President of the United States of America," and that this command came with extraordinary and nearly exclusive power over international affairs. I think it's fortunate at this difficult time in our history that President Bush has fought to maintain and reclaim this Executive duty.

Naked Judicial Elitism on the Washington Supreme Court

In the Seattle Times, State Supreme Court Justice Susan Owens elucidates her respect for the wisdom of the people to choose their government, and by extension, democracy itself.

Johnson and other critics say Owens' position in both cases is proof that she is a liberal "activist" judge who is too willing to decide policy matters that should be left to the Legislature.

But Owens suggests there are times the court has to play such a role.

"The Legislature is really behind the times socially," she said during a recent interview with editorial writers at the Yakima Herald-Republic.

Wow.

The Legislature defines where we are socially, because they represent the "social" body that is our entire electorate. Who is she to say who's "ahead"” or "“behind"” that? And even if we are "behind,"” that'’s explicitly not the role of the judiciary to make those changes. This is tyranny of the elite stripped bare for all to see.

It's ironic that liberals are wailing and gnashing their teeth over conservatives "buying" seats on the Supreme Court, just because they dare to fund and run a competitive campaign. Do you think Owens' financial support from gay-activist groups had anything to do with her extra-legal votes in In re L.B. or Andersen v. King County? Nah... Not that I'm blind to the probable influence the BIAW would have on Johnson (among many reasons I think judges should be appointed), but at least he's not openly advocating judicial policy making. And frankly, I contend that the BIAW and Johnson's other bi-partisan supporters (as opposed to Owens' exlcusively liberal ones) support him because they know that the statutes as writen and the popularly elected legislatures that enact them are already on their side. All they need is a Justice who will follow the law instead of her predetermined policy predilictions.

The Post-Intelligencer calls the "legislating from the bench" attack a "slur" that threatens a "fair, impartial and independent judicial system." But Justice Owens is legislating from the bench - by her own admission. And you can't be "fair" or "impartial" if that's what you're doing. What's more, it's disturbing to see the P-I so ignorant of the larger danger of upsetting the careful balance of our government's seperated powers. A Judicial Superlegislature does nothing to protect our rights.

Justice Owens openly declares that she thinks it's perfectly appropriate for a Justice to make policy from the bench, when she and she alone decides where we should be "socially." For that reason alone, she's unsuited to be there.