These days, the Supreme Court's conservative bloc wakes up in the morning and decides what they'll lay waste to that day. Half a century of reproductive rights? Gun control? The Miranda ruling? Separation between church and state? Done, done, done and done! How about the environment? As of Thursday, that is done, as well. By a—wait for it—6-3 majority, the Court substantially gutted the power of the Environmental Protection Agency to, well, protect the environment.
The specific question in West Virginia vs. EPA was whether Obama-era caps on carbon emissions are legal. The careful reader will note that Barack Obama is no longer president of the United States, and hasn't been for over 5 years. Oh, and the caps in question were eliminated during the administration of Donald Trump. Still, the Court supposed, probably correctly, that Joe Biden would try to impose caps of his own at some point. So, the Supremes decided that they better just act preemptively, and that is what they did.
This is not good news for the roughly 88% of people worldwide who see climate change as a threat. Nor is it good news for the 85% of people worldwide who have already been affected by global warming. However, it actually gets worse. The justification for the majority decision is that global warming was not a thing in 1971, and so the legislation creating the EPA could not possibly have granted the EPA authority to combat global warming.
What the Court is engaging with here is a legal notion called the "major questions doctrine." In short, although no Supreme Court decision has used that exact terminology, the Court has nonetheless made clear that if a federal agency is dealing with an issue of major national significance, it must have clear statutory authority to do so. Previously, the general understanding was that the Environmental Protection Agency was on solid ground whenever it took steps to, you know, protect the environment. Not so much, apparently. This throws into question the activities of many other agencies (for example, AIDS did not exist when the CDC was created and cybercrime did not exist when the DoJ was created). It also suggests that Congress, in its future legislation, must exhaustively spell out the duties and powers of any bureaucracy it creates, ideally with the assistance of a soothsayer, a fortune teller, and a psychic who can warn them what issues will arise 40 years into the future.
You get the sense that Chief Justice John Roberts realized the game was up when the Dobbs decision came down, that there was no real purpose in continued efforts to steer a middle course, and that he might as well lean into the far-right jurisprudence and let the cards fall where they may. He is definitely giving Roger Taney a run for the title of "Worst Chief Justice in American History." Maybe he really is an institutionalist who cares about the reputation of the Court or maybe that was just a put-on, but either way, the reputation of the Court is in tatters.
For what it is worth, Joe Biden reacted to the news by declaring that there would still be action on climate change. His options are somewhat limited, however. He could go to Sen. Joe Manchin (D-WV), and try again to come up with a reconciliation bill that makes forward progress on climate change. However, Manchin is a fellow whose side gig is making millions from selling coal. Further, take a look at the second paragraph and note again which state was the plaintiff in this lawsuit.
The other alternative is to figure out what authority the EPA still has, and to make use of that. The Court's decision specified that the agency can regulate carbon emissions, just not too much. What it did not specify was exactly where that line is. So, the White House will just have to make its best guess. Meanwhile, one cannot help but nod at the headline for yesterday's CNN op-ed from Stephen Collinson, who is usually center-right: "The Supreme Court's conservative majority is a threat to the world." (Z)
Newly minted associate justice Ketanji Brown Jackson was sworn in yesterday, as planned. And she gets to join the liberal minority at a time when the conservative majority just keeps picking up steam.
For the next few months, the Supremes will have it easy, just issuing the occasional midnight order and declining to put a stop to the occasional execution. And then, after a nice rest, the right-wingers on the Court will get right back to work. Among other cases, they may give their blessing to racial gerrymanders, to discrimination against LGBTQ+ Americans and to getting rid of Affirmative Action.
There is one case, however, that sent chills up and down the spines of Court-watchers when the justices announced yesterday that they were going to grant certiorari. That case is Moore v. Harper, and it was brought by North Carolina Republicans.
The specific issue in question is the North Carolina district maps, which the Republican-controlled state legislature gerrymandered six ways to Sunday, and the Democratic-controlled state Supreme Court struck down. The Republican legislators are arguing that the Constitution gives them sole authority to administer federal elections, and that they should therefore not be answerable to the courts in elections-related matters.
This is known as the "independent state legislature theory," and it's not too hard to imagine the extremes to which it could be taken. But in case you are having trouble, election-law expert Rick Hasen published an op-ed yesterday that spells things out. So did Ethan Herenstein and Thomas Wolf of the Brennan Center. To quote the latter piece:
The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state's election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn't far from the plan attempted by Trump allies following his loss in the 2020 election. And, according to former federal judge J. Michael Luttig—a distinguished conservative jurist—the theory is a part of the "Republican blueprint to steal the 2024 election."
In short, Moore is potentially a case about the future of democracy itself.
The good news, such as it is, is that John Roberts has been dismissive of the independent state legislature theory in past opinions. That said, the five conservatives besides him are enough for a majority. And, as we note above, he may well have abandoned any efforts to steer a center course.
Of course, the decision will be announced long after this year's midterms. That means that the only chance voters will have to counteract the worst possible SCOTUS decision will come before the decision is known. The 2022 midterms are shaping up to be some of the most consequential in American history, up there with 1862 and 1942. (Z)
At the start of his term, Joe Biden was, by all indications, a fan of the Senate filibuster. This makes sense; he was a long-term U.S. Senator, and he is a moderate and an institutionalist. But, after a year and a half of being president, he's starting to think the filibuster isn't so peachy. He's already called for a carve-out to be made for voting rights, and yesterday, he declared there should also be one for abortion rights.
Here are Biden's exact words, which came at a press conference during the NATO summit in Spain:
The most important thing to be clear about is I believe we have to codify Roe v. Wade in the law, and the way to do that is to make sure the Congress votes to do that. And if the filibuster gets in the way, it's like voting rights, it should be we provide an exception for this, requiring an exception to the filibuster for this action to deal with the Supreme Court decision.
That said, while he's calling for bold action from the Senate, Biden's thus far been unwilling to take bold action himself. For example, White House Press Secretary Karine Jean-Pierre—who would not hold forth like this without approval—has already said that using federal facilities for abortion services is off the table, as that would have "dangerous ramifications." White House lawyers have apparently concluded that anyone who performed or received an abortion on federal land would still be at risk of prosecution by the state in which the abortion occurred.
In any event, the bold Senate action that Biden is calling for is not going to happen. Joe Manchin and Sen. Kyrsten Sinema (D?-AZ), who must have a template on their computer where they just have to fill in the date and the issue, promptly issued statements reiterating that they are not open to changes to the filibuster, no matter what the purpose. It is surely the case that Sinema is now more likely to be elected to a second term as a Republican than as a Democrat, although if that's her plan, it would be best served by flipping now, and becoming a hero on Fox for giving the gavel back to Senate Minority Leader Mitch McConnell (R-KY). (Z)
Joe Biden will be in Saudi Arabia next month for a meeting of the Gulf Cooperation Council. Saudi Arabia, as you may have heard, has lots of oil. And gas prices, as you may also have heard, are very high right now. So, it is to be expected that the President would take the opportunity to ask the Saudis to ratchet up their production.
At the same press conference where he called for a filibuster carve-out (see above), Biden was asked this very question. And he said that the point of next month's meeting is not for the U.S. and Saudi Arabia to talk with each other, but instead for the U.S. to talk to all the countries of the Gulf Cooperation Council. This being the case, he does not plan to directly ask the Saudis to increase oil production.
This would seem to suggest he is going to ask them indirectly. We tried to imagine what that might look like, and for your reading pleasure, we now present our 10 best guesses:
We have to assume that, despite his protestations, Biden will bring up the question directly. He just doesn't want to make it seem kind he's cozying up to MBS. That said, we'd like of like to see what "Please produce more oil" looks like when communicated via charades.
Of course, Biden doesn't really have to ask MBS directly. The crown prince already knows what Biden wants. Besides, both of them have phones. Nevertheless, making Biden fly all the way over there and beg for more oil just makes it clear to Biden and everyone else who is in the driver's seat here. Once Biden has acknowledged that, MBS may be more cooperative. (Z)
Donald Trump is the leader of the Republican Party—for now. However, evidence abounds that the former president's grip on the GOP is slipping, to the benefit of Gov. Ron DeSantis (R-FL). Consider:
As a result of their changing fortunes, the battle between Trump and DeSantis for the 2024 Republican presidential nomination is now on full blast. Make no mistake about that. And DeSantis is a smart politician, much smarter than Trump, and thinks he knows exactly how to go about dethroning Trump.
First was explicitly refusing to ask Trump to endorse his run for reelection as governor, even though Trump is his constituent. While many Republican politicians will walk over burning coals or broken glass barefoot to get Trump's endorsement, DeSantis has made it abundantly clear that he neither wants it nor needs it. Not begging for an endorsement is intended to humiliate Trump. It says: "You're not important and I don't need your assistance."
This means that DeSantis has just declared his independence from a man who forces everyone who wants to be in his good graces to grovel and announce their dependence on him, as Mike Pence did for 4 years and is still kind-of doing. He hates Republicans with an independent power base and who are not dependent on him (see McConnell, Addison Mitchell). DeSantis has already made it clear that from now on, he is his own man.
DeSantis knows well that Trump loves to belittle his opponents with nicknames like Low-energy Jeb. DeSantis is effectively labeling Trump as "Irrelevant Donald." He is showing that he understands how Trump operates and is fully capable of operating the same way. He thinks he can beat Trump at his own game.
Trump is not going to take this lying down, of course. In public, because the base is increasingly enamored of DeSantis, the former president is proceeding cautiously. For example, he appeared on Newsmax yesterday and was asked about potentially having DeSantis as a running mate. Here was the reply:
Well, I get along with them. I was very responsible for his success because I endorsed him and he went up like a rocket ship, just like I endorsed Mary Miller the other day, who supposedly was not going to win. And she won. Just like Darren Bailey is doing great. He just won. Yeah. I think he's going to beat Pritzker, one of the worst governors of the country.
Notice that the words "yes" and "no" are both entirely absent from that response. Meanwhile, behind the scenes, people in Trump's orbit are working hard to take the Governor down a few pegs.
It could be very interesting if Trump and DeSantis both run, the primary is extremely bitter, and Trump gets the nomination in June with 52% of the delegates to DeSantis' 48%. Normally, under those circumstances, the winner is expected to pick the #2 as the veep to create party unity. But if Trump despises DeSantis by then and picks, say, Gov. Kristi Noem (R-SD) or Nikki Haley, as #2, DeSantis might just sit out the election, not support Trump, and start thinking about his 2028 run.
And what if it's DeSantis 52%, Trump 48%? Or even DeSantis 60%, Trump 40%? Trump did not accept the loss of the presidential election; why would he accept the loss of the Republican presidential nomination? If Trump were to decree that he is the "real" nominee, and that the votes were rigged, what would the Republican pooh-bahs do? A lot of them have invested a lot of capital in the notion that you don't need proof you were cheated at the ballot box; you just have to "know" you were.
Given Trump's significant weaknesses, and his petulance and refusal to accept defeat, and the fact that DeSantis appears to offer all the upsides of The Donald without the liabilities, it's pretty clear that many Republicans will join the Democrats in cheering if Trump is indicted for, and convicted of, any of the myriad crimes he's been accused of committing. (V & Z)
One more Trump item, while we are at it. Truth Social, the former president's social media platform, was funded through an instrument called a special purpose acquisition company (SPAC). In theory, people who give money to a SPAC are expecting the officers to seek out the best possible investment opportunities. In this case, the SPAC already knew it was going to give the money to Trump's venture, a fact that was hidden from investors.
Now, the folks who run the SPAC are on the feds' radar. Specifically, this week they received summonses from a federal grand jury in New York. Trump was not included, but a bunch of his business partners were. And who knows? He could well be next.
Even if the former president isn't in legal hot water (yet), there is still bad news for him on this front. The value of the SPAC dropped 10% in one day, in response to the subpoenas. It's down 50% on the year. And so, Trump is taking a financial hit. And the fellows who run the SPAC are taking a financial hit, in addition to a potential legal hit. And when a bunch of grifters get some just desserts? Well, you don't need us to tell you that there's schadenfreude in that. (Z)