An interesting decision in this morning's news. What will the Ninth Circuit do with this?
I read that post yesterday, and it seemed to be one of Drum's weaker posts in recent memory. (Unless I'm somehow misunderstanding his argument, or the cases involved, which is always possible.) I know he's not a lawyer, but he's usually got a pretty good layman's understanding of legal issues. In this post, he seems lost.
In Crawford, a state's own voting laws were at issue. So, given rational-basis inquiry, "that's OK as long as the legislature in question can whomp up some kind of neutral-sounding justification." Shelby County dealt with Congressional power to interfere with state voting laws. The issue is the interaction of the 10th and 14th/15th Amendments, roughly, along with, uh, the "fundamental principle of equal sovereignty," I guess. So stricter scrutiny is in order.
Granted, I think both of these cases were incorrectly decided. But Drum acknowledged none of this.
Possibly my recollections of Con Law are flawed, but isn't 'the fundamental principle of equal sovereignty' a bit of a novelty, jurisprudence-wise?
Generally, you're absolutely right that the cases are distinguishable in all sorts of ways, but I don't think there's any clear way at all in which the differences compel the different outcomes, and Drum's take looks pretty solid to me. Except that he seems surprised about it.
I think Roberts invented it whole-cloth yesterday.
5 to 4 is the more normal order of things these days.
"[A]ny clear way at all in which the differences compel the different outcomes"? Sure, no, of course not. But any clear way in which the differences explain the different outcomes, less nefariously than "harms black voting" vs. "protects black voting"? There plainly is. So writing it off as if harms vs. helps black voting is the primary differentiating factor seems wrong.
But any clear way in which the differences explain the different outcomes, less nefariously than "harms black voting" vs. "protects black voting"? There plainly is.
I wouldn't call that plain at all.
That is, to be less snippy, I find the differences seriously implausible as a goodfaith basis for the differences in outcomes. I can imagine a conversation with a lawyer who approved of the decision where I'd feel socially compelled to treat the sorts of things you identify in 2 as plausible explanations for the different outcomes, because sometimes it's just too difficult to insist on your interlocutor's admitting the obvious. But there's nothing there I feel tempted to buy as a serious motivation for the outcome for a moment.
8: Yes, he invented it in Northwest Austin (and it is cited as such in Shelby).
My layman's googling finds it to be a concept in international law on the equal footing of nations.
11: huh. Maybe that's because, as you've previously said, you don't believe "federalism" is an independently important value at all? I don't disagree with you on that, but I think for many conservatives, it is, and I think (in many cases) that's a genuine belief and not a pure cover for racism.
14: but even if you believe in federalism, to apply an implicitly elevated standard of review when "equal sovereignty of the states" is involved, but full deference when the (non-invented) right to vote is at stake (which I think is what happened in Crawford but maybe I'm remembering wrong?) is insane and does not reflect a legitimate distinction.
I don't disagree with you on that, but I think for many conservatives, it is, and I think (in many cases) that's a genuine belief and not a pure cover for racism.
This is complicated. I don't think it's always a pure cover for racism, or necessarily a cover for racism at all. For an example of the latter, there are people with an instrumental attachment to federalism because they think their state's policy preferences are better than what they're likely to get out of the federal government (like, CharleyCarp has said things indicating an attachment to devolving power to Montana on that basis).
Someone with a 'principled' attachment to states' rights, though? I think that, as a current conservative belief, is historically unambiguously traceable to racist resistance to the civil rights movement. That doesn't make it always a pure cover for racism in any individual -- if you repeat a cover story often enough, you're going to convince some people. But I think there are very very few people who are sincerely attached enough to states' rights as an independent value that it would in practice override any other of their policy preferences. It's a big deal when it drives an outcome they like, and disappears otherwise.
I think (in many cases) that's a genuine belief and not a pure cover for racism.
Yes. My friend's status "A win for equality AND states' rights! Couldn't be happier."
I'll post this one here because today's Scalia is a very different Scalia than the one that joined Roberts in Shelby.
It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing
(or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere "primary" in its role.
But I think there are very very few people who are sincerely attached enough to states' rights as an independent value that it would in practice override any other of their policy preferences. It's a big deal when it drives an outcome they like, and disappears other
This doesn't actually contradict what you say, because there aren't very many of these, but legal academics--like academics generally--really do often fall in love with conceptual abstractions like this. And since they teach the next generation of the ruling class, their views matter.
19: I have to admit, I've been kind of puzzled to notice that your former cob-logger, recently hired to a fancy faculty job, has been posting a lot of Facebook commentary on the decisions in the last few days, but in no case can I find in them any apparent opinions about actual issues as opposed to technicalities or observations about how interesting it is that who is siding with who changes around.
your former cob-logger, recently hired to a fancy faculty job
I have lost track of something. Who is this?
I like federalism, yes, especially where it's a ratchet. Our analogue to the Fourth Amendment is more protective than the Fourth Amendment. Couldn't be less (that's the federal part of federalism) but in most states it's the same. Here, though, we've decided we want it to be more. I like that we can have a constitutional right to a clean and healthy environment, even if the rest of you haven't signed on for that.
And don't have any problem with imposing different standards of review of plenary federal action as opposed to state action. I'm with urple in thinking both decisions incorrect, though.
21: W/ill Ba/ude.
In fact, the only opinion he has posted about the Voting Rights Act case is on PrawfsBlawg, where he writes that the opinion was written "well and clearly". I think that kind of pushes him toward moral-monsterdom in my book.
20: he does the same thing on twitter. I find him annoying!
However, essear, said fancy faculty person is a big fan of Nabokov.
Yes, I know. Liking Ada probably doesn't make up for offering crypto-support for racist policy.
On the other hand, he did once refer to me on his blog as "way smarter than [him]", so I gotta give him credit for that.
Based on the abstract, I wouldn't be surprised if his big new Y. Law Journal piece becomes the go-to intellectual justification for a lot of really bad stuff in the next decade or two, but I haven't actually read it yet, so that's not very fair of me. Ah well. (And yes, I did in fact have him in mind when I wrote 19, but he's certainly not the only one.) Anyway: a very wonderful guy. Just, objectively, advancing the cause of evil in the world.
I'll take this as a general politics thread;
If you haven't been keeping up with the IRS 'scandal", this is where the thing has gotten to. The IG only reported on conservative groups because that's what Rep. Darrell Issa (R-CA), the notoriously partisan chairman of the House Oversight Committee, told him to do. (A variety of search strings were used, including "progressive" and "occupy".)
28: so, I guess there was a real scandal after all.
I'm going to sprain something with the eye-rolling. I can't believe Issa got away with that nonsense. Can't anyone on our side play this game?
And I shouldn't feel personally offended on behalf of bureaucrats, but shouldn't people be apologizing to the Cincinnati IRS office?
30: I recall that there was some early reporting that indicated that others had been targeted, but it was never very specific. And the IRS and everyone is still saying the lists in general were "inappropriate" (so no apologies) but I'm not sure that I see it that way.
The IRS thing made sense after I saw the articles about preventing government employees from refusing to answer questions. Perhaps that's not the real goal, but I feel like the Rs are going to do everything they can to get someone to eventually admit something not quite legal done at some point under Obama. Unfortunately, I assume if they call enough people, they'll eventually get stupid lucky.
Although, this is the point in the story where I always get confused about why no one (in this case, Lois Lerner) cried bullshit earlier. Why take the Fifth rather than explain? I mean, generally, politically motivated investigation, they'll twist everything, I can come up with things to say that sound relevant, but when I think about specifics they don't quite make sense.
why no one (in this case, Lois Lerner) cried bullshit earlier. Why take the Fifth rather than explain?
Because she took a large payment under the table from one of Darrell Issa's cronies in order to go publicly cry bullshit, and just quietly go along with the story. She took the Fifth because she was worried that admitting that would incriminate her. That seems like a fairly straightforward reason to plead the Fifth amendment.
That... had not occurred to me. You think?
The five people who lost their jobs because of this "scandal" should get their jobs back, together with a written apology from Obama for throwing them under the bus.
Trapbel was a co-blogger with that despicable asshole?
23: wait, what? Where did trapnel blog? Eh, I suppose it doen't really matter. It's not like I'm going to start reading blogs again regardless.
32: Yeah, not sure why the "inappropriate" adjective is still hanging around. It all seems appropriate to me. Moreover, it seems rather outrageous that the IRS is being criticized for using filters to effectively manage their oversized workload, while simultaneously being criticized for being too slow.
I would like to have seen the IRS stand up for itself a little better in this situation. For such a widely feared organization, they seem to have a rather serious case of institutional cowardice.
There was a period when I thought those crescat twerps were pretty cool.
I had not only forgotten about Crescat, I don't know if I ever knew trapnel was a part of it.
Yeah, I had a few posts, spaced out over a few years, at his old groupblog. Maybe 2002-6 or so? I think the domain was taken over by spammers years ago.
He's not an asshole at all, and was a good friend back in undergrad. He just happens to have political and jurisprudential views that are wrong in important ways, and he's likely to be in a position to influence the world in that direction in a non-trivial fashion. Ah well. I should have tried harder when we argued about originalism, back in the day.
You think?
I think there's more good evidence for this theory than for the widely reported speculation that this whole thing was a hit job ordered by Obama in order to intimidate conservative voters before the 2012 election.
I thought you wanted our side to play this game, too? (Comment 30.)
I only read that blog briefly, but "despicable libertarian twerp" was pretty much the only reasonable takeaway. He might be nice to kittens, but who really gives a fuck?
34: I can come up with things to say that sound relevant, but when I think about specifics they don't quite make sense.
Yes, this makes me think that there may still be material facts to come out on this that may look better or worse for IRS/Issa/who the hell even knows?--but certainly the "shape' of the thing is quite different from how it was represented early on.
Ah, but you said "asshole", and I think of "asshole" as reflecting a vice that expresses itself in one's personal interactions (or perhaps in how kittens)--in any case, it's quite distinct from one's political morality. (And also distinct from being a twerp.)
Err, "or perhaps in how one treats kittens". Okay, offline for the day.
Fair enough. I sometimes forget that not everyone hates libertarians as much as I do.
It's so hard to make them accept the core precepts of Halfordismo.
He might be nice to kittens, but who really gives a fuck?
His personal friends, probably. And kittens everywhere.
51: Exactly! Their ideology isn't really acceptable when one is aspiring to be an eccentric redistributionist pro-bison God-Czar.
Has anyone seen anything interesting about Obama's climate change speech? I'm not talking about opinion pieces; I've got opinions of my own. What I'd like to see is something that assesses the regulatory reach of the executive and thus how likely it is that Obama -- and his successor, assuming that person is a Democrat -- can be the change he outlined in speech.
I know some people who would characterize WB as very much a personal asshole.
54 -- not really, but my general layman's understanding is that the plan is (a) quite cautious in terms of authority asserted but (b) nonetheless will be beaten and bruised in the rulemaking process and by the DC Circuit.
58: agreed on both points, but, instead of hearing things piecemeal from friends, I'd like to read something comprehensive by someone who knows something. Oh well, I guess people are thinking about other things and don't have time to contemplate penny-ante nonsense like a last-ditch effort to save the planet.
59: Aren't you going to run into a "predictions are hard, especially about the future" problem? Halfassed speculation about how things are going to play out is a dime a dozen, obviously. But what are you expecting to find that's going to be solidly informative on either what the EPA is going to do, or what the courts will let it do?
Halfassed speculation
A key component of Halfordismo.
60: as I said above, I'm interested in the extent of the EPA's -- and, perhaps, other elements of the executive branch -- regulatory reach these days. I'm not sure how that's calling for more than the usual amount of speculation so much as an assessment of what the executive branch, given various constraints, can realistically hope to accomplish during the period outlined in the speech.
Anyway, I thought someone here -- perhaps essear or teo -- might have seen something.
63 -- Part of the answer is that the speech didn't actually reveal much new detail. It's been clear for a long time that the EPA is going to regulate existing power plants, though how it does so matters a lot and is where the technical answers will be, and do a bunch else. The DC Circuit and the lobbyists will do their thing, and cases like this one matter. But it's hard to do more specific reporting when the details of what's going to go down are still being worked out. I mean, it's been clear that the EPA has the authority to regulate greenhouse gasses, but what exactly that will mean in detail and in practice is simply not known yet.
Obama Climate Plan Full Throttle Fracking Endorsement
Gasland 2 Director Josh Fox and Mark Ruffalo Weigh In on the Plan
Without reducing total production, which would require him to really take on the fossil fuel industries and have a real fight with them, this plan is not going to do anything to solve the problem," Fox told DeSmogBlog. "Cutting the overall emissions from power plants, but not cutting overall production of coal and gas, makes the problem worse."
The idea is to become a net, correct that, huge, energy exporter.
Now look up "resource curse" and try to re-imagine it as a plan.
The ambitions of the people and the government conflict, due to the large amount of resources and money a country's government amass for their own luxuries rather than for the people. Thus natural resources serve as a curse for the people, who then have a lower relative standard of living.
The US has been already been doing it for a decade, with one "resource" being risk-free assets.
The Incredible Hulk Mark Ruffalo? Is there any chance he might be involved in a fracking protest in upstate New York? (Admittedly, I can't get past "Buffalo Ruffalo..." but there's got to be some way to make the sentence work out._
I repeat, the Obama "Climate Plan" in no way reduces production or consumption of gas, coal, or oil.
It simple exports the surplus carbon overseas to less efficient production zones with weaker consumer and environmental protections.
Yeah, it is major-league fucking EVIL.
Obama is evil and can do nothing good.
Holy shit, 65.last is actually insightful!
The one thing I've learned from Halford is that the only righteous course is to just fucking hate libertarians.
Sorry, VW, I'm in the same boat. Was hoping to read some detailed analysis somewhere, but haven't found it yet.
70: okay, thanks. If you see something, please let me know. Feel free to e-mail me at work, as I don't check in here all that often these days.
70: for what it's worth (really not much), this was written by a friend. Unfortunately, the intended audience is the general public, and so it doesn't say anything that you won't already know.
Grist is probably the best place to look for the sort of analysis you're looking for, VW. I think Slate also had a piece a while back on what the EPA could do.
Here's an analysis of Obama's proposals by Dave Roberts (apparently written before the speech itself). I haven't read it, but it looks like he concludes that it's basically a bunch of small but meaningful actions rather than anything very dramatic.
That probably doesn't address your main question about EPA's regulatory reach, but there might be something else on Grist that comes closer.
Here's another Roberts piece suggesting the new plant standards may not be very effective since they're apparently going to treat gas and coal plants separately.
I'm using the "wait until I find out why it's all disappointing empty rhetoric" coping strategy. I'm surprised that you're not doing the same, Von Wafer, since I learned this coping strategy from you.
77: Yeah, I haven't been paying close attention to this recent stuff from Obama on climate change, largely because I expect it to not ultimately amount to much.
And now I should go to bed. I have to get up early tomorrow for a long day to be spent largely on airplanes.
Shouldn't you just stay up? The one thing you don't need to be well-rested for is air travel.
Well, none of the flights are actually going to be very long, it's just that there are a lot of them, and I'll need to be at least somewhat well rested for the parts in between when I'll need to be talking to people and stuff.
I think it's going to be seven flight segments total, the longest of which will be about an hour and a half.
I can only assume this is some whirwind tour of backcountry Alaska crime.
It sounds like you could buy a coal mine for pence, though.
Sprees don't have planned itineraries.
Your thinking of the ones we know about because the criminals got arrested.
Update: The whirlwind tour went well. I just got home and am pretty exhausted, though.
Carrying the bags of ill-gotten Alaskan gold, or caribou, or whatever it that you steal up there, will tire a person yout.
84:I might buy some coal stock. Exports up 400%
That's a gov't chart, for those who don't trust my links and get their information from their facebook friends.
Coal exports from the United States in March 2013 totaled 13.6 million short tons, nearly 0.9 million short tons above the previous monthly export peak in June 2012. EIA is projecting a third straight year of more than 100 million short tons of coal exports in 2013, following annual exports in 2011 of 107.3 million short tons and record annual exports in 2012 of 125.7 million short tons.Increased Asian demand for coal contributed to the record level of coal exports from the United States in March. Of the record export tonnage, 6.3 million short tons were steam coal and 7.4 million short tons were metallurgical coal.
Steel
Adam Liptak with some good head-banging material for LB:
In the decision, Chief Justice Roberts repeatedly quoted from his 2009 opinion. He took pains to note that eight members of the court, including its four liberals, had already agreed that "things have changed in the South" and that the voting law seemed at odds with principles of federalism and "equal sovereignty" among the states. The liberal justices, he suggested, had joined him four years ago in building a time bomb with a very long fuse.