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. Let’s see. The SCOTUS is entirely lawless. The Texas AG announces legal/financial support for county officials that refuse to issue homosexual marriage licenses. Obama criminally breaks immigration law every minute. The JV team is taking over the Middle East and brutalizing an innocent population in the process (and you thought slavery was bad). Obama isn’t eligible for the office he was illicitly ensconced in to pacify global minorities. The executive branch is in “overreach” causing a constitutional “tipping point” making Obama the President, Nixon wanted to be.

    Why are King Boehner and the Congress missing out on the festivities? Apparently, Champaign and caviar are enough to keep them satisfied. The British monarch was the sovereign, the old King. The new King is the Speaker of the House of the Congress that represents the People, the new Sovereign.

    Why aren’t the King and His Court in “overreach?”

    “We got no dog in that fight, cuz there’s no fight in that dog.”

    Meanwhile, under cover of executive and judicial constitutional anarchy and the incoherency of the dullards on Capitol hill,

    it’s money that matters and the matter right now is coal.

    The $2 trillion energy industry pays the Supreme Court to utterly and completely obfuscate with the revelations of judicial insanity, while it protects the prodigious and colossal profits in coal and energy. What could be more incomprehensible and disorienting than the SCOTUS decisions that the word “state means federal and federal means state” (the very newspeak of “1984”) retrieving the irretrievable Obamacare, and its decision that homosexuals, for whom it is physically impossible to consummate marriage through procreation, have the right to marry.

    America muddles forward like a drunk walking home, down a dark and stormy alley, at 2am.

    The inmates have taken over the asylum.

  2. Why would anybody want to get married? There is the economic motive. One party might want the other to support him/her. There is the social and family pressure such as “Oh, if I am not married then I failed in life and same with not having brats.” Then there is the need to have a soul mate. That is a positive reason. Then there is sex, drugs and rock and roll. For guys, a trip to the cathouse is often better. But guys dont always know that and cathouses do not abound in America.
    We are the land of the free but you can not pay for some sex legally except in some parts of Nevada. And most of what I said is from a guy’s point of view. Why do women want to marry? Somebody please chime in. Why for that matter would a woman want to marry a dog? No dogs allowed on that answer.

  3. @NickS

    I think it was to run it up straight America’s rear end. Plus, when you are in a group, and people keep poking you to feel a certain way, you sometimes just act out of solidarity for your group. Plus, you can get all that sympathy from the stupid straight people who think you really are just like Brad and Janet, and not the Enema Twins. Then, sometimes when things are really screwed up, you need an enemy to kind of focus you. There the gays were dying like flies of HIV, and not really a part of real life, sooo what to do??? Oh, you define an enemy, and then they are responsible for everything that is wrong in your life. Sort of, “Oh, here I am on my knees in a public restroom, marveling at all the different shades of brown on the walls, and I need a good justification for me being here, doing what I am doing., . .Oh I know! It’s stigmatization! Yeah, that’s what it is! Because if I could get married like straight people, then it would be me and my husband here with this stranger, not just me all by myself! And we could take this guy home with us!”

    That is what the Nazis did with the Jews. The Jews were just somebody to blame for all the unemployment and break down of society in the Weimar. But the Nazis had to wake up one day and face the fact that the Jews weren’t the problem. One day, gays will come to that same sad realization. If they don’t die of AIDS, drug overdoses, suicide, HepC or D whatever, or a John Wayne Gacy type serial killer first.

    Squeeky Fromm
    Girl Reporter

  4. Squeek, I have asked ~5 gay people I know, and more gay folks on blogs, what was the impetus for the INCREDIBLE push for gay marriage. We went from “Viva la difference” to the practical civil union phase to gay marriage in the span of 20 years or so. No one has the answer. They speak in euphemisms but I want to know the reason for the rapid change in the gay communities mindset. Not straight folk, gay people. And I have not yet gotten an answer. They don’t know why it became INCREDIBLY important. And, as I’ve said, many gay people don’t abide marriage. THEY know they’re different and feel no compulsion to conform. The attitude toward abortion has changed radically since Roe v Wade. The reason is almost entirely science. Caring women know that’s a person and science keeps pushing viability lower in gestation. In Roe v Wade the intrusive SCOTUS got involved in an issue that was still evolving and should have left to voters. Hopefully I’m alive in 25 years to see how the SSM issue evolves.

  5. @NickS

    Well, if the preachers will get their act together, they have a sin-rich environment in Gays! Most of them don’t get married, and the ones that do aren’t usually monogamous. Even in Europe, the number who get married is stunningly low:


    In 1995 Sweden passed the Registered Partnership Act which created civil unions for homosexual couples. In 2003 that law was amended to give registered homosexual couples the same right to adopt or have legal custody of children as married couples. The percentage of homosexual or lesbians in Sweden that enter into civil unions may be estimated as fo llows:

    Number of homosexuals and lesbians in Sweden who have registered their unions: The number of registered same-sex unions in Sweden is reported to be about 1,500 (for a total of 3,000 individuals) out of the estimated homosexual and lesbian population of 140,000.[26] This indicates that only about two percent of Swedish homosexuals and lesbians choose to enter into legally recognized unions. Put another way, about 98 percent of Swedish homosexuals and lesbians do not officially register as same-sex couples.

    The Netherlands

    A landmark law allowing same-sex “marriage” was instituted in the Netherlands on March 31, 2001, with a highly publicized communal ceremony that included two lesbian “brides” and six homosexual “grooms.” The Netherlands instituted a “registered partnership” law in 1998 that accorded legal status to homosexual relationships similar to that of marriage. The new law, which explicitly recognizes same-sex matrimony, is restricted to Dutch nationals. However, as the following analysis shows, the percentage of homosexuals and lesbians that have entered into marriage-like civil unions is very low.

    Number of Dutch homosexuals and lesbians who have registered their unions: A news report by the Gay Financial Network predicted that “some 10,000 gay couples could be married” in the first year following the legalization of gay “marriage” in the Netherlands. In reality, far fewer chose to solemnize their relationships. The Office of Legislative Research released a report in October 2002 stating: “The Dutch Ministry of Economic Affairs reports that 3,383 of the 121,776 marriages licensed between April 1, 2001, and June 30, 2002, involved people of the same sex.”[28]

    Thus, as of October 2002, only 2.8 percent, or 6,766 individuals (3,383 licenses) out of an estimated homosexual and lesbian population of 242,000, have registered their unions as “married.”

    My GUESS is, that you will never see above 10% of gays get married, unless the benefits really increase. Even me and my BFF Fabia Sheen, Esq. have talked about it, and we aren’t Lesbians by any stretch. But, we could save about $4,000 a year being married, which with 40 more years of work, is $160,000 without interest or inflation, or $80,000 a piece principal. The only hang up is that if Fabia ever decides to get married for real, we would have to get divorced here where we live. We could get married in another state, but the divorce is here, which means everybody who knows us will find out. And that would be sooo embarrassing!

    Anyway, that is what preachers need to be preaching about. All the promiscuity and disease stuff. And all the adultery in the special gay snowflake marriages. Give it a few years, and gay marriage is going to be a millstone around gay necks. Because for them, it is mostly about sex.

    PS: Did you hear about the Pansie For Plato people getting beat up by a Black mob??? OMG!

    Squeeky Fromm
    Girl Reporter

  6. Professor Turley seems to think that the SC did the right thing in this instance and in the same sex marriage case GIgi. You forget he is a lawyer and seems to believe in the judicial system. Maybe it’s becoming exceedingly evident to more people that our Congress is broken and can’t do diddly squat. Maybe a strong Judicial doesn’t upset Professor Turley as much as the Executive.

  7. A lot of divorce lawyers will flee that area of law when the gay marriage people start getting divorced. Why? Because the complaining and whining will be so out of whack that cleaning outhouses will seem a better workplace.

  8. I read an interesting piece in the NYT today. Many people employed by large companies, and of course virtually all govt. employees, have had “domestic partner” healthcare benefits. Well, in states where gay marriage has been legal many companies have phased out those benefits. Get hitched or lose benefits. I know there is a significant group of gay people that have not drunk the Kool-Aid. They always liked their being outliers and different, thinking marriage was a straight persons thing. The article focused on a lesbian couple, who have been together for decades in Maine who are now forced to marry if they want to keep the partner’s healthcare. They do not want to marry. “Be careful what you wish for.”

  9. The Supreme Court has been overstepping its duty of office and everyone is ignoring that fact. What happened to checks and balances between the three branches. I’m surprised Prof. Turley hasn’t responded to this obstruction of justice to defend what the Framers intended.

  10. Considering cost at all is a “body blow for environmentalists”? They’re not forced to decide that way, but even including it at all is a body blow? Considering all the issues before making a decision shouldn’t be considered extreme, it should be considered thorough and responsible.

    The EPA believes that some 11,000 premature deaths could be avoided by its regulation

    Sure it does. Somehow regulations can save the world before they’re implemented. Afterward well, they’re sure it would have been much worse.

  11. There is criticism of the court by some that the Court is political. Well, somewhat. Most are neutral. Alito and Scalia are both John Birchers. Alito is said to be a Log Cabin Republican. So I was surprised he did not like the gay marriage decision of the Majority. The “originalist” tag only works if they are interpreting the original Constitution. They do not go to the original thinking of the Framers of the Reconstruction Amendments at all. The originalists would stick with slavery if they could. I just hope they all have an open mind to the notion of marriage between a human female and a male dog. A guide dog at that. There might be a case of that nature in the courts soon. HumpinDog and his wife to be, Betty Lou Thelma Liz flew off towards Cuba this morning to tie the knot at a Cuban courthouse. Then they will attempt to get the marriage recognized in North Carolina.

  12. “too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal
    effectively with other (perhaps more serious) problems.”

    Yes, indeed. Who, dare I ask, does this dollar/life cost-benefit analysis?


    “Justice Ginsburg deals blow to partisan gerrymandering.” And saved democracy!

    “In a victory for opponents of partisan gerrymandering, the Supreme Court on Monday upheld the use of an independent commission to draw Arizona’s congressional districts. Writing for a narrow majority in the 5-4 ruling, Justice Ruth Bader Ginsburg touted the importance of direct democracy and making sure the power of the people is not hijacked by its elected representatives.

    “By insulating redistricting decisions from direct partisan influence, commissions like Arizona’s offer a crucial first step toward breaking the cycle of partisanship and dysfunction perpetuated by legislative gerrymandering. The States’ efforts to use such commissions to tackle one of America’s most intractable political problems have great potential and are fully consistent with the States’ traditional role as laboratories of democracy.” The Supreme Court agreed.”

  14. Follow the money

    SCOTUS voting to support Obamacare maintains billions for the private parasitical health insurance industry. Hopefully the parasites will be booted and replaced by a single payer two tier system.

    SCOTUS voting to support gay marriage is a great money maker. Lots of legal fees, home buying, etc.

    SCOTUS voting to slow down the replacement of dirty, dangerous, and environmentally damaging coal by cheaper, cleaner, and readily available natural gas keeps the money in place. The status quo.

    British Columbia has 150 years of natural gas reserves, enough to power the US and Canada until renewable energy comes on line. With renewable energy the gas reserves will last even longer. Malaysian banking consortiums are already developing the liquefaction and shipping of the BC gas. Yet the coal industry seems to have the ear of SCOTUS.

    They may be mere puppets that do what the oligarchs dictate but they are our puppets.

    The smell of pollution, why that’s just the smell of success.

    And so it goes.

  15. Gerrymandering is not as easy or as devious as one may think. The urban-liberal/rural-conservative divide is well-known. The number of people in each district needs to be relatively similar. A candidate in an urban area has a much easier time going door to door, meeting with people at urban venues, meeting with existing organizations, getting exposure on local media. A candidate in a rural area has much more challenging campaign opportunities. So if a large chunk of an urban or suburban area, known to have a right wing leaning, can be included in a mostly rural district, the district can be physically smaller to meet the population guidelines. The rural candidate has greater opportunity to contact voters, get name recognition, and win an election. That process also works to dispose of urban liberal votes in that district, offset by the larger number of right wing rural votes in the same district. Urban folks placed in mostly rural districts lose the opportunity to vote for a candidate representing urban interests. The result is that in the last election many more people voted for the Democratic candidates than for Republicans, but the rural-urban offset allowed the Republican candidates to win. More ideas are needed in how to make voting better reflect the will of the people, while not putting rural candidates at a severe disadvantage in campaign options.

  16. As an Arizonan I am tossed about the Arizona decision. The thought behind the committee was good and the first time it was used was beautiful. However, this last time it all went to hell. Which is why the legislature wanted the power back. In Arizona, the legislature can put amendments on the ballot, so they may for the next election.

  17. I am pleased with the EPA decision. Not that I want arsenic in the air or other pollutants, but because the costs of these arbitrary EPA rulings by unelected bureaucrats with immediately affect the lives and finances of the people who rely on the services provided by the power companies.

    If the need is real, then the costs not just to the companies that produce the power need to be quantified and justified, but also the increase in the costs of power to everyone.

    The EPA has gone into a massive overreach mode. They want to control all aspects of our lives, our water, our food….everything. Each arbitrary decision creates additional costs. It may or may not be justified, but it is NOT the place of unelected government lackeys to decide these things.

    Unfortunately our Congress seems to be asleep at the wheel.

  18. So, can the people now determine, by referendum, that they want to do away with “secret ballot”, too? Can we require a voter to sign his/her ballot in front of a government official? Cool.

    If the Legislature is no longer solely charged with Times, Places, and Manner, can the peeps, by referendum, change any/all of the election process, procedures, and rules? Very cool.

  19. This flurry of rulings – some good, some bad, all have one hallmark – politicization.

    Whether you agree or disagree with the decisions of SCOTUS, most of us are skeptical about how politics have entered into the judicial arena.

    Once our faith in the court is shaken, it will be hard for SCOTUS to win back that support.

    Roberts has done the Supreme Court no favors.

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