I don't particularly care for courts, especially the 5th circuit, deciding what should be done with nuclear waste. It's radioactive! How would Ho like it parked outside his home? It should be left up to the Atomic Energy Commission to dispsoe of it.
You can put Trump in the deepest cell of Supermax and finish lobotomizing McConnell, it will barely matter. They have done their damage for years to come.
wow, was this a victory for Texas. Now presumably any waste has to sit in containers outside the facility that generated it until Congress does what Judge Ho wants. And that facility is in (wait for it) Texas.
Judge Ho, of course, signed that fan boy (and girl) letter defending Justice Thomas. The letter is well ridiculous. But, anyway, so is this "major questions" stuff.
The failure of Congress to "fix" the other circuit rulings on statutory interpretation is telling. For instance, Congress very well did do that at times when it deemed the courts getting it wrong, including on voting and civil rights. Changing the law, especially with the current close partisan divide, is hard in our system. But, this is about nuclear waste. It is less of a hot button topic than a range of things.
I am glad the end of the main SCOTUS term didn't end your posts.
Here, I find it odd you call the invocation of the major question doctrine a power grab. Isn't the usual framework of the major question doctrine that the administrative agency cannot take whatever action it is proposing? If the courts are saying "Mr. Agency, you do not have authority to regulate that," isn't that the opposite of a power grab? isn't that the dismantling of power?
I suppose one could argue that undoing a "left wing administrative policy" is a power grab for the right, but it is also true it prevents the governments use of power. The only reason I do not accept that here is because I do not see how nuclear waste is partisan. (it definitely might be, but i am not familiar with the history of it and from an objective position it is hard to determine what party would prefer what outcome when it comes to nuclear waste)
My main issue here is the incredibly, I think, careless way Ho wields the doctrine to strike a longstanding policy in two paragraphs. I don’t care if it is an alternative reasoning, he is showing how it’s just not serious law.
For a long time now I have been of the view that Congress has been far too lax in delegating its lawmaking responsibilities to administrative agencies. In a lot of instances, they've simply abdicated their responsibilities to address issues which call for a legislative response. All you have to do to confirm that is look at the size of the CFR. And it's not even a left-right issue. For every Republican complaint about unnecessary or burdensome regulations, there's a Democrat complaint about agencies being captured by the industries they were created to regulate and adopting regulations which favor the industry over the public interest.
But the major questions doctrine IMHO is pure drivel and I agree, it DOES represent a power grab by the courts. What the heck is an issue of "vast economic and political significance"? Where in the Constitution do the federal courts derive the authority to determine that? They are charged with deciding cases and controversies, not "major" ones. A delegation of authority either does or doesn't pass muster under the APA. The courts don't get to pick through issue by issue those questions they don't want the agency to take up depending upon the subjective whims of the judges before whom a rule is challenged.
Having said all this, I'm not sure what the solution is. Having Congress properly exercise more control over the agencies they create is near impossible in a world of Tommy Tubervilles and Freedom Caucus types who would politicize even the simplest of issues.
They are stripping authority from government agencies and saying Congress needs to make a law about this specific issue, knowing how impossible it is these days to get anything through congress- so progress to a more equitable future grinds to a halt. This guy also thought the FDA had no authority to approve Mifepristone decades ago. Dangerous idealogue who probably wants to shut down nuclear power because it takes money away from his oil and gas buddies (she says without any evidence whatsoever)
It's a power grab on behalf of wealthy special interests.
It's as Chris says in another article on the topic: "If you don’t want government regulation, say big decisions have to be explicitly, specifically authorized — how explicit? how specific? we’ll see! — by federal laws."
well, except for the fact that regulations aren't just dreamed up and announced from some administrators desk. They have to be issued in accordance with the Administrative Procedures Act, which has all sorts of requirements for notice, hearings, comment.
Failure to do just that was the downfall of many regulatory--or deregulatory--attempts by the trump administration.
Any member of the public appears to be able to petition an agency for a change in its rules. There are a bazillion Acts governing how rules can be challenged.
This reporting is so very scary and if congress doesn’t address the Supreme Court issues like code of ethics and increasing the size of the court we regular folks are going to be you know what!
I'll leave it to lawyers like you to figure out the "major questions" doctrine, which seems to me an excuse to dismantle environmental regulations. But the nuclear waste issue, as you suggest, is more complicated than that.
For example, New Mexico is also trying to stop the federal government from unilaterally imposing another nuclear waste site:
Just yesterday my administrative law professor discussed the shifting foundations of admin law and introduced the major questions doctrine (in the first class).
I think it's important to emphasize, though, that this was a power grab by the Supreme Court *away from the executive*. There is genuine reason to be concerned over the instability created by a congress that hasn't done any major policy-making in about 15 years - that's how we got things like child separation at the border, attempts to expel transgender service mentbers, the "Muslim ban", and the rapid flip-flopping over carbon standards that underlay the original "major questions" case.
This is not to say the Court hasn't grabbed power away from the legislature as well; one need only look to the false equation of originalism and textualism, or the refusal to permit the creation of independent regulatory agencies, for examples in that sphere. Part of the problem is that we're out of the habit of amending the constitution, even when it's obviously necessary or simply prudent, and part of the problem is that our electoral system encourages the development of large, tightly balanced, and therefore fragile coalitions where individual constituencies within those coalitions often have more loyalty to their fellow coalition members than they do to their nominal interests.
I actually think the “major questions” doctrine, ultimately, is taking power away from both other branches -- for the reasons I describe at the bottom of the piece.
I see what you're saying. I suppose my response would be that while I wouldn't be particularly surprised if "major questions" ultimately *did* take power from the legislature at some point, I'm not quite willing to say it has yet.
(Also I'd like to add "gutting the voting rights act" and "anything related to qualified immunity" as SCOTUS power grabs that took principally from the legislature - can't believe I forgot those two in my initial comment.)
I’m having difficulty keeping straight the issues of delegation of authority vs interpretation deference, and how the major questions doctrine applies in either case.
The delegation of authority issue seems to be just a right wing effort to legislate from the bench by taking authority away from administrative agencies despite statutory broad grants of authority from Congress. If the claim is that if Congress wanted to include a certain specific grant of authority because it’s a “major question” seems like one could just as easily say Congress could have expressly withheld such authority.
The issue of deferring to agencies’ interpretation of those authorizing statutes is a different one. I’ve felt for many years that this was a dubious principle. Statutory interpretation is the court’s job. I don’t believe courts should defer to Administrative agencies in how statutes are to be interpreted regardless of how “major” the question is.
I don't think "deferring" to an agencies interpretation necessarily means that a court has to blindly accede to that deference. A lot has to do with the level of expertise required to come to that interpretation. What a court has to do is consider what kind of evidence is behind the agency interpretation as opposed to the evidence produced in the challenge, and when things are close to equal, give more weight to what the agency's evidence is.
It is, or should be, a court decision based on evidence, not political beliefs. Sadly such a court decision is getting harder and harder to find in parts of this country.
I don't particularly care for courts, especially the 5th circuit, deciding what should be done with nuclear waste. It's radioactive! How would Ho like it parked outside his home? It should be left up to the Atomic Energy Commission to dispsoe of it.
You can put Trump in the deepest cell of Supermax and finish lobotomizing McConnell, it will barely matter. They have done their damage for years to come.
wow, was this a victory for Texas. Now presumably any waste has to sit in containers outside the facility that generated it until Congress does what Judge Ho wants. And that facility is in (wait for it) Texas.
Judge Ho, of course, signed that fan boy (and girl) letter defending Justice Thomas. The letter is well ridiculous. But, anyway, so is this "major questions" stuff.
The failure of Congress to "fix" the other circuit rulings on statutory interpretation is telling. For instance, Congress very well did do that at times when it deemed the courts getting it wrong, including on voting and civil rights. Changing the law, especially with the current close partisan divide, is hard in our system. But, this is about nuclear waste. It is less of a hot button topic than a range of things.
I am glad the end of the main SCOTUS term didn't end your posts.
Here, I find it odd you call the invocation of the major question doctrine a power grab. Isn't the usual framework of the major question doctrine that the administrative agency cannot take whatever action it is proposing? If the courts are saying "Mr. Agency, you do not have authority to regulate that," isn't that the opposite of a power grab? isn't that the dismantling of power?
I suppose one could argue that undoing a "left wing administrative policy" is a power grab for the right, but it is also true it prevents the governments use of power. The only reason I do not accept that here is because I do not see how nuclear waste is partisan. (it definitely might be, but i am not familiar with the history of it and from an objective position it is hard to determine what party would prefer what outcome when it comes to nuclear waste)
Cheers!
My main issue here is the incredibly, I think, careless way Ho wields the doctrine to strike a longstanding policy in two paragraphs. I don’t care if it is an alternative reasoning, he is showing how it’s just not serious law.
For a long time now I have been of the view that Congress has been far too lax in delegating its lawmaking responsibilities to administrative agencies. In a lot of instances, they've simply abdicated their responsibilities to address issues which call for a legislative response. All you have to do to confirm that is look at the size of the CFR. And it's not even a left-right issue. For every Republican complaint about unnecessary or burdensome regulations, there's a Democrat complaint about agencies being captured by the industries they were created to regulate and adopting regulations which favor the industry over the public interest.
But the major questions doctrine IMHO is pure drivel and I agree, it DOES represent a power grab by the courts. What the heck is an issue of "vast economic and political significance"? Where in the Constitution do the federal courts derive the authority to determine that? They are charged with deciding cases and controversies, not "major" ones. A delegation of authority either does or doesn't pass muster under the APA. The courts don't get to pick through issue by issue those questions they don't want the agency to take up depending upon the subjective whims of the judges before whom a rule is challenged.
Having said all this, I'm not sure what the solution is. Having Congress properly exercise more control over the agencies they create is near impossible in a world of Tommy Tubervilles and Freedom Caucus types who would politicize even the simplest of issues.
They are stripping authority from government agencies and saying Congress needs to make a law about this specific issue, knowing how impossible it is these days to get anything through congress- so progress to a more equitable future grinds to a halt. This guy also thought the FDA had no authority to approve Mifepristone decades ago. Dangerous idealogue who probably wants to shut down nuclear power because it takes money away from his oil and gas buddies (she says without any evidence whatsoever)
It's a power grab on behalf of wealthy special interests.
It's as Chris says in another article on the topic: "If you don’t want government regulation, say big decisions have to be explicitly, specifically authorized — how explicit? how specific? we’ll see! — by federal laws."
well, except for the fact that regulations aren't just dreamed up and announced from some administrators desk. They have to be issued in accordance with the Administrative Procedures Act, which has all sorts of requirements for notice, hearings, comment.
Failure to do just that was the downfall of many regulatory--or deregulatory--attempts by the trump administration.
Any member of the public appears to be able to petition an agency for a change in its rules. There are a bazillion Acts governing how rules can be challenged.
This reporting is so very scary and if congress doesn’t address the Supreme Court issues like code of ethics and increasing the size of the court we regular folks are going to be you know what!
I'll leave it to lawyers like you to figure out the "major questions" doctrine, which seems to me an excuse to dismantle environmental regulations. But the nuclear waste issue, as you suggest, is more complicated than that.
For example, New Mexico is also trying to stop the federal government from unilaterally imposing another nuclear waste site:
https://www.heinrich.senate.gov/newsroom/in-the-news/nm-leaders-decry-federal-license-for-nuclear-storage-facility
Indeed! There's no doubt that states, by and large, don't want it. Harry Reid's career in the Senate always circled around fighting against the Yucca Mountain site (which is part of — again, reaching the limits of my understanding — why we're in this mess): https://www.ktnv.com/news/harry-reids-legacy-a-staunch-opponent-of-yucca-mountain-nuclear-waste-disposal-site
Just yesterday my administrative law professor discussed the shifting foundations of admin law and introduced the major questions doctrine (in the first class).
Matter-Antimatter. The irresistible force of minimum rationality meets the immovable object of major question.
I think it's important to emphasize, though, that this was a power grab by the Supreme Court *away from the executive*. There is genuine reason to be concerned over the instability created by a congress that hasn't done any major policy-making in about 15 years - that's how we got things like child separation at the border, attempts to expel transgender service mentbers, the "Muslim ban", and the rapid flip-flopping over carbon standards that underlay the original "major questions" case.
This is not to say the Court hasn't grabbed power away from the legislature as well; one need only look to the false equation of originalism and textualism, or the refusal to permit the creation of independent regulatory agencies, for examples in that sphere. Part of the problem is that we're out of the habit of amending the constitution, even when it's obviously necessary or simply prudent, and part of the problem is that our electoral system encourages the development of large, tightly balanced, and therefore fragile coalitions where individual constituencies within those coalitions often have more loyalty to their fellow coalition members than they do to their nominal interests.
I actually think the “major questions” doctrine, ultimately, is taking power away from both other branches -- for the reasons I describe at the bottom of the piece.
I see what you're saying. I suppose my response would be that while I wouldn't be particularly surprised if "major questions" ultimately *did* take power from the legislature at some point, I'm not quite willing to say it has yet.
(Also I'd like to add "gutting the voting rights act" and "anything related to qualified immunity" as SCOTUS power grabs that took principally from the legislature - can't believe I forgot those two in my initial comment.)
I’m having difficulty keeping straight the issues of delegation of authority vs interpretation deference, and how the major questions doctrine applies in either case.
The delegation of authority issue seems to be just a right wing effort to legislate from the bench by taking authority away from administrative agencies despite statutory broad grants of authority from Congress. If the claim is that if Congress wanted to include a certain specific grant of authority because it’s a “major question” seems like one could just as easily say Congress could have expressly withheld such authority.
The issue of deferring to agencies’ interpretation of those authorizing statutes is a different one. I’ve felt for many years that this was a dubious principle. Statutory interpretation is the court’s job. I don’t believe courts should defer to Administrative agencies in how statutes are to be interpreted regardless of how “major” the question is.
What am I missing?
I don't think "deferring" to an agencies interpretation necessarily means that a court has to blindly accede to that deference. A lot has to do with the level of expertise required to come to that interpretation. What a court has to do is consider what kind of evidence is behind the agency interpretation as opposed to the evidence produced in the challenge, and when things are close to equal, give more weight to what the agency's evidence is.
It is, or should be, a court decision based on evidence, not political beliefs. Sadly such a court decision is getting harder and harder to find in parts of this country.