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On Dec. 27, five Republican-appointed Supreme Court justices voted for Biden’s emergency order imposed by the Trump administration at the height of the COVID-19 pandemic that severely restricted immigration to the United States to reduce the risk of contagion. blocked the president from releasing it. Judge Neil Gorsuch disagreed, explaining that “we are a court, not a policy maker of last resort.”
Gorsuch’s point is spot on. But six months ago in West Virginia v. EPA, when President Obama’s Environmental Protection Agency (EPA) rejected the Clean Power Plan adopted to protect our environment, he and the Republicans appointed It contrasts sharply with the positions taken by his five other judges. Reduce environment and global warming.
The Clean Air Act directed the EPA to determine “the optimal emission reduction system” and “the degree of emission limits achievable through the application of that system” and impose those limits. But when the Obama EPA concluded that the “best system” would reduce carbon pollution by shifting some of its power generation from coal to cleaner sources, Gorsuch and other Republican-appointed judges allowed it. did not do it.
These judges did not and could not prove that the Clean Air Act did not authorize the Clean Power Plan. They acknowledged that “as a matter of ‘definition possibilities’,” changing the source of power generation “can be described as a ‘system’ and… can reduce emissions.” And they acknowledged that “limiting carbon emissions to a level that would force a nationwide transition away from using coal to generate electricity could be a sensible solution.” rice field.
However, they have decided to block the implementation of the Clean Power Plan by announcing a new so-called ‘key question doctrine’. Its “legal doctrine” is that the majority of the courts have “broad range of powers, [the agency] ‘ and its ‘economic and political importance’ ‘provides ‘reason for Congress to hesitate before reaching its conclusion’ intended to grant such power. ”
And on what basis do courts decide whether Congress “would hesitate” as to whether it “intended to grant” statutory powers? Will you get testimony? No, the court didn’t in the EPA case. Instead, it made its decision to invoke its doctrine based on its own “presumption” of what Congress intended, and its own view of what Congress was “likely to do.” clean power plan.
This is completely different from the way current Republican-appointed judges usually say how to interpret the law. They declare Congress to be a “textualist” who enforces the plain language of the law without looking at “what it does” or delving into its intentions.
In their view, if there is “reason to hesitate” as to whether Congress intended what the word of the law actually says, their announcement of disobeying their own “textualist” doctrine should be , effectively giving the court unrestricted and unchecked power to revoke or rewrite the word of any statute. The court allowed itself the right to do what Gorsuch said it shouldn’t do: to assume the role of the ultimate policy maker.
The real complaint of the Republican-appointed judges is that, in their view, Congress has delegated too much power to the EPA over a wide area. But under our constitutional system, the proper body to deal with such concerns is Congress, not the courts.
Justice Elena Kagan, along with former Justice Stephen Breyer and Justice Sonia Sotomayor, explained in their dissent in the EPA case: I can’t think of anything more terrifying. ” The damage is not only to our health and the environment. This assumption of power by unelected branches of government undermines our democracy.
If Congress determines that the wording of a statute does not reflect what it intends or wishes to reduce the broad powers or directions conferred on its executive branches, it is free to amend the statute or enact new legislation. You can enact. But nothing in the Constitution gives the Supreme Court the power to do so.
The “Leading Question Principle” is particularly troubling. Because most, if not all, of the current Republican-appointed judges, who dominate the courts, believe in small government and that Congress should not delegate important responsibilities to the executive branch. because Their new “doctrine” allows Congress to put its philosophy into practice by reducing or eliminating the powers Congress grants to executive branches and agencies.
And the very nature of its “doctrine” means that it does not work in a neutral way. I believe we should play a much bigger role in eliminating it and providing a safety net than the views of Republican-appointed judges. Thus, these judges could use “doctrine” to restrict Democrat-controlled Congresses and Democratic presidents from doing what they elected to do. On the other hand, most of the current Republican congressmen and most of the possible future Republican administrations share these judges’ restrictive government philosophies. Therefore, its doctrine is much less likely to be used against their laws and administration.
The risks that doctrine poses to Biden’s agenda are very real. For example, in February 2023, a court will consider challenges by six of her Republican-controlled states to Biden’s decision to provide student debt relief. Biden, a policy he campaigned for, was elected president with the largest number of votes of any presidential candidate to date. he received Six states are asking the Supreme Court to exercise the “leading question principle” to confirm that Biden lacks authority to provide debt relief. We must resist the temptation to re-assume the role of policy maker that is not.
Michael J. Dell is a New York attorney who litigates and writes on constitutional issues.
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