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.