You are right that these cases are legal rather than political in form. And it's valuable read the actual opinions (or at least the executive summaries) to get a sense of the legal debate. That said, as there are colorable legal arguments on both sides of the W. Va. decision as in many others, it is hard to believe that the Justices are not resorting to their own policy preferences in their votes.

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Jul 5, 2022·edited Jul 5, 2022Liked by Jeff Maurer

For my money, the undisputed champion in the category for "most power acquired and money spent from the shortest law" has got to be the 2001 authorization for use of military force.

One sentence that says "use the military against anyone who knew about 9/11 on September 10th so those before they do it again," is all the authority CENTCOM needed to pick a side in the Afghan civil war and spend 20 years laying the groundwork for the most spectacular failure turnaround Afghanistan had seen since Alexander the Great said, "actually, I'm good here."

Not to mention anything we blew up not in Iraq.

And all of it, continuing years after that report counting up the total size of the "knew the whole plan" club was exactly five

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As a scientist who agrees this is an emergency the policy outcome distresses me.

However, as person who worries a great deal about bureaucratic overreach after 20 years of dealing with some of it more insane manifestations encountered at a National Lab over 20 plus years, I hesitate to say Roberts was wrong. Not because of the word "system" as much as because of the intent of Congress. It was the Clean Air Act. Its purpose was to empower the EPA to stop directly harmful pollutants like Acid Rain and breathable toxic emissions. While Global Climate change is clearly an emergency in the big picture, Greenhouse Gases are not actually "dirty" in the way the Clean Air Act was empowering the EPA to regulate. It was a huge stretch to apply those provisions into a Cap and Trade and I am not sure Roberts was wrong to call them on it. No matter how much I want the policy outcome of applying that overreach in power by the EPA to continue.

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Jul 5, 2022Liked by Jeff Maurer

Jeff, you are one terrific writer and entertaining to boot.

Your reasoning is well laid out and valid, unlike the rant by Bret Stephens in his recent “conversation” with Gail Collins in The New York Times.

On another matter, now that you are actually living in Hollywood and walking, not “working” the Walk of Fame, like so many others, take a bit of time to find out show those unfamiliar names were and you might be surprised by their achievements. (You can forget the repeated defaced star of the former president.) They are all part of Hollywood’s and American popular history. Heaven, knows recent contributions to culture are becoming more specious as time moves forward.

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Just to be a total geek, I LOVE the question “what is a system” and created an hour-long class about it for work (engineers). It was fun, I promise- even sober!! 🤓 My semi-professional opinion is that the word is sufficiently broad that it could include a cap-and-trade “system” but I also agree with Roberts that that’s probably not what the 1970s Congress meant (a violently-enforced dictatorship is a system too.... I don’t think any of us want gun slinging members of the EPA tracking down people who dare to buy gas before sunset during an air quality alert). But I agree with you that it’s not on the EPA to restrict their interpretation of a vague word- that’s on Congress.

This seems like this issue would have come up before. Does Congress not have a bureau or something dedicated to clarifying intent and interpretation of its own laws, when it comes to bureaucratic execution?

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Climate change should in no way be defined as an emergency, crisis, etc. It is a long term technological and structural problem that needs to be solved over the next 80 years or so (the IPCC timeline goes to 2100). It is directly tied to our energy, food and material needs so doing rash things based on “feels” is not well advised.

Nobody can sustain an “emergency” for 80 years, so this way of describing it is doomed to failure and will likely set everything back. (Although the AUMF is already going on 21 years...)

I agree with you in the end though, that this will only be solved by technology. No amount of trying to make energy expensive will fix this- only cheaper carbon free alternatives will solve the problem in a way that Africa can use without dooming them to continued poverty. Splitting the atom was discovered just a short 83 years ago- so let’s not pretend that we know how we will solve this in the next 80 and get all depressed. Kristallnacht happened the same year. People weren’t exactly looking forward with happy thoughts in 1939, but shit turned out pretty well for most of humanity for a long time after the terror subsided.

I’m with Roberts on this one (John, definitely not David). No “system” currently exists that can successfully limit CO2 from specific power plants. Even Rube Goldberg trading schemes have not proven successful anywhere. Regulations stop us from building literally everything from Nuclear Plants to Solar Farms, and bridges, roads, etc. are made way more expensive. So there needs to be strong limits on the regulatory state, even if the OG clean air act was pretty boss.

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Any idea if the laws that Congress wrote to create all the Federal courts are as "vague" as the EPA law discussed herein?

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Speaking of overly broad language, “a well-regulated militia” and “arms” come to mind. So if SCOTUS is going to infer and enforce what they think was meant by a legislative body 50 years ago, how about applying that standard to a decision made by a legislative body 250 years ago. (Whatever the 2A equivalent of Godwin’s law is, I’m sure I just went there.)

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"You can’t have federal agencies seizing authority that nobody gave them by distorting the English language beyond all recognition."

And since the left basically controls language it must be incredibly frustrating to them given they can't define their way out of their dilemma.

Which is why they believe so strongly in the living - breathing nonsense.

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Great analysis! This is why I pay the big bucks for this substack :-). Seriously, though, *so much* liberal complaints were "but climate change!" which is not, exactly, how the Supreme Court should be determining Constitutionality.

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I laugh all the way to the end and learn a lot while being entertained at the same time. Thanks!

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deletedJul 5, 2022·edited Jul 13, 2022
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