Good Day For Election Reformists; Bad Day For Environmentalists

Supreme CourtI am doing some coverage at CNN but, in addition to the predictable rejection of the lethal injection challenge, the Court handed down two major decisions. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court ruled 5-4 that states could effectively take away redistricting decisions from state legislatures — a key move to try to end the scourge of gerrymandering. In Michigan v. EPA, the Court again split 5-4 in ruling that the EPA must consider the costs to industry in setting environmental limitations — in the case involving arsenic emissions — under the Clean Air Act.

I am uneasy over the constitutional interpretation in the ruling in the Arizona case, but the ruling will clearly help those seeking to end the twisted, contorted design of districts by controlling parties to protect their majority in Congress. At issue is the initiative adopted by voters in 2000 that sought to end “the practice of gerrymandering and improving voter and candidate participation in elections.”
Proposition 106 amended Arizona’s Constitution to remove redistricting authority from the Arizona
Legislature and vest that authority in an independent commission. The legislature challenged the constitutionality under the “Elections Clause” of the U. S. Constitution which states:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Art. I, §4, cl. 1.

The Arizona Legislature argued that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people.” I thought that was a credible argument, albeit a close one. As a voter, however, I was personally gladdened to see the effort to end this harmful and maddening process of gerrymandering by politicians. Putting aside the constitutional interpretive question, the ruling removes any barrier for such commissions to be used in all 50 states.

The ruling in the Michigan case is a body blow for environmentalists. The EPA believes that some 11,000 premature deaths could be avoided by its regulation set for arsenic emissions. It refused to consider the costs in setting those levels to the industry. Instead, it based its decision solely on the public health. The new standard would cost the industry $9.6 billion annually but the EPA argued that it would result in benefits of $30-$90 billion (a curiously wide range).

The Court disagreed and said that for the regulation to be “appropriate and necessary,” the EPA must consider industry costs. The Court held:

There are undoubtedly settings in which the phrase “appropriate and necessary” does not encompass cost. But this is not one of them. Section 7412(n)(1)(A) directs EPA
to determine whether “regulation is appropriate and necessary.” (Emphasis added.) Agencies have long treated cost as a centrally relevant factor when deciding whether to regulate. Consideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions. It also reflects the reality that “too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems.” Entergy Corp. v. Riverkeeper, Inc., 556 U. S. 208, 233 (2009) (BREYER, J., concurring in part and dissenting in part). Against the backdrop of this established administrative practice, it is unreasonable to read an instruction to an administrative agency to determine whether “regulation is appropriate and necessary” as an invitation to ignore cost.

One possible area of criticism is that Chief Justice Roberts and Justice Anthony Kennedy appear to take a narrow reading of the rule in this statute after taking an expansive view of health care law to uphold the interpretation of the Administration last week.

On a final note, the Court has again accepted the Fisher case for review. After upholding the constitutionality of a 2006 ban on considering race in college admissions, the Court sent the case back down for review. The United States Court of Appeals for the Fifth Circuit then again upheld the admissions rules for the University of Texas. It will now be again before the Court. The case is Fisher v. University of Texas at Austin.

32 thoughts on “Good Day For Election Reformists; Bad Day For Environmentalists”

  1. What if the EPA had to consider the cost of the negative health effects? Then business would be screwed.

  2. I just read that the guillotine continued to be used by the French Republic until the last execution in France, in 1981.

  3. As long as the guillotine is available, why is it not unconstitutional to execute people with unreliable drugs? Surely the guillotine is far less painful.

    As humane a polity as the Weimar Republic used the guillotine (Fallbeil in German) to execute people.

  4. Regarding Barking Dog’s question and the economic advantage of getting married.

    I think you will find that many Gay’s/Homosexuals/Lesbians will not be getting married due to the “marriage penalty” in the IRS code.

    When you have two high income earners, as many urban gay types are, it is a distinct DISadvantage to get married and file a joint income tax return, since the combined incomes will throw the couple into a higher marginal tax bracket than they would otherwise be if they filed as singles. If one person of the couple is dependent, not making much or any income, then the marriage penalty isn’t that much of a concern.

    Inheritance issues are a biggie, however, those laws have yet to be changed in many States and by the IRS to reflect the new status/definition of marriage. I can’t wait to see how that will happen when Polygamy is legalized. The current allowance is for each person to have a Unified Credit (exemption from estate taxes) and the spouse can inherit without any income taxes. The UC allows each person to set aside a large sum of the estate to bypass estate taxes (trusts usually) AND allow the spouse to inherit tax free the remainder of the estate. When there are multiple spouses, I would imagine that the IRS will drastically lower the Unified Credit so that they can still get their grubby greedy hands on your money when you die. They can’t have everyone getting out of taxes by using their currently high UC. Est 5.3 million per person in 2015. It will probably go back to 500K or so. like it was in the 80’s when I started in this business. GREAT news for financial planners and insurance agents and lawyers 🙂

    And then there are gift taxes and the exempt amounts against the gift tax.

    Just getting married doesn’t change the current laws regarding SS survivorship or taxation or estate taxes or child custody etc etc. That’s just the beginning of the can of worms.

  5. Regarding the Maine couple. Universities do not self insure healthcare. They contract w/ private insurers. With this SSM ruling, insurers domestic partnership coverage WILL end. You WILL have to marry if you want coverage for your mate. This may happen in months, or a year, but it WILL happen.

  6. doctoryes, You are naïve or dishonest. I am quite familiar w/ Sully. He is a conservative like I am the Yankees shortstop. The more you comment the more clueless you show yourself.

  7. @doctoryes

    You are right about the lower rates of all marriage in Sweden. That was covered above at the link I provided, wherein yu find:

    The much lower rates of homosexual and lesbian civil “marriages” in Sweden and the Netherlands must be viewed in the light of much lower marriage rates in both of those countries, a trend that the introduction of gay “marriage” in the 1990s has not reversed. Thus, as writer Stanley Kurtz argues, the granting of marriage rights to homosexuals and lesbians “has further undermined the institution” of marriage: “Scandinavian gay marriage has driven home the message that marriage itself is outdated, and that virtually any family form, including out-of-wedlock parenthood, is acceptable.”[29]

    Which as for marriage as an institution, it is my personal belief that it has been negatively impacted much more by welfare, pornography, and the acceptance of “self-pleasuring ” than it is by same sex marriage. I have posted things before about the low rate of marriage, and sex itself in Japan, for example. Several generations from now I suspect that the big push will be to encourage men and women to marry, and go forth and multiply. But notice that even in Sweden, by your stats there is a 20:1 ratio of straight versus gay marriage.

    Squeeky Fromm
    Girl Reporter

  8. Nick

    Andrew Sullivan could explain it all to you. His blog, The Dish, is still open.

    He’s extremely intelligent, he’s conservative, and a very committed Roman Catholic.

    If you’re really serious about wanting to know ‘why’, he’s your guy.

  9. Fromm

    Your study on homosexual marriage rates in Sweden needs some clarification since…

    Only about 60% of Swedish people marry by the time they’re 40, compared to nearly 90% of Americans. Swedish tend to marry in their mid 30s and women there tend to marry in their early 30s. Sweden has one of the lowest marriage rates in the world and has the second highest divorce rate in the world after the United States

    Please notice the part that says Sweden has one of the LOWEST marriage rates in the world. That’s true for the rest of the Scandinavian countries.

    Something about a strong social system I believe.

  10. Nick has misstated the concern.

    The couple in Maine FEAR the university will change their present benefit policy, forcing them to marry in order to continue getting health benefits for her partner. Nobody knows if the university will change the policy as yet.

    Other companies and institutions in states that had already legalized same sex marriage have been changing their partner benefit policy, but most are allowing couples a year or more of continuing benefits before changing the benefit to married couples only.

    I don’t think this is a hard call. With the end of marriage inequality, the benefit applies to married couples only.

  11. IMPEACHMENT is the only LAW left in America.

    When impeachment fails, it’s the military that matters.

    America is now run by tyrants

    at the pleasure of the military.

    We always wondered what the true nature and character is, of a country that prowls around the world, bombing everyone and “nation-building.

    Now that depends entirely on what the meaning of the word is, is.


    “The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. The answer was provided immediately. A Mrs. Powel of Philadelphia asked Benjamin Franklin,

    “Well, Doctor, what have we got, a republic or a monarchy?”

    With no hesitation whatsoever, Franklin responded,

    “A republic, if you can keep it.”


    A restricted-vote republic. Not a one man, one vote democracy.


    Alexander Fraser Tytler –

    “A democracy cannot exist as a permanent form of government. It can only exist until the people discover they can vote themselves largess out of the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the public treasury, with the result that democracy always collapses over a loose fiscal policy–to be followed by a dictatorship.”


    Sorry, Ben.

  12. The oligarchy

    orders the SCOTUS

    to hide the bad stuff,


    with the good stuff

    welfare healthcare



    Executive “overreach”

    and judicial “slight of hand.”

    What, is Boehner “fat, dumb and happy?”

Comments are closed.