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Supreme Court rules against EPA

EPA-SCOTUS-Examiner

John Siciliano reports: The Supreme Court ruled 5-4 against Environmental Protection Agency pollution rules for power plants Monday, in a blow to President Obama’s environmental agenda.

The majority decision, written by Justice Antonin Scalia, said the EPA has to consider the costs of complying with the rules and sent the air pollution regulations back to the agency.

The EPA rules in question regulate hazardous air pollutants and mercury from coal- and oil-fired power plants, known as the MATS regulations. The regulations went into effect April 16. The utility industry had argued that the rules cost them billions of dollars to comply and that EPA ignored the cost issue in putting the regulations into effect.

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“EPA must consider cost — including cost of compliance — before deciding whether regulation is appropriate and necessary. It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost,” Scalia wrote in agreeing with the industry.

The decision will have repercussions for other EPA regulations that are key to Obama’s climate change agenda. The EPA will now have to examine the cost of compliance for the Clean Power Plan, which is at the heart of the president’s environmental agenda. Read the rest of this entry »

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Elena Kagan: ‘That Was Then, This Is Now’

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Via  at Legal Insurrection Read more here…


FTCA Act Update: Supreme Court Eases Rules To Sue Federal Government For Malpractice

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The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.

WASHINGTON (AP) — The Supreme Court on Wednesday made it easier for people to sue the federal government for negligence, in a decision that could affect military veterans with claims of medical malpractice.

“One case stemmed from a fatal traffic accident on Interstate 10 in Phoenix in which a car passed through a safety barrier into oncoming traffic. The plaintiff, Marlene June, represents the child of one of two people killed in the crash.”

The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.

“June claimed that the Federal Highway Administration made her wait more than two years before she was allowed to depose officials and uncover evidence that the barrier had failed a crash test.”

Justice Elena Kagan wrote the majority opinion that combined the cases and upheld rulings by the 9th U.S. Circuit Court of Appeals that said the deadlines were somewhat flexible under the federal law that deals with lawsuits against the government.

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The Obama administration argued that Congress intended the deadlines to be firm and that the government should not leave itself open to old claims indefinitely.

“The other case involved a Hong Kong woman who sued the Immigration and Naturalization Service after she was detained in Oregon, strip-searched and deported.”

But Kagan said Congress did not clearly indicate it wanted those deadlines to be iron-clad when it passed the Federal Tort Claims Act. “The time limits in the FTCA are just time limits, nothing more,” Kagan wrote. Judges have discretion to extend the deadlines, she said. Read the rest of this entry »


Bench Update: Supreme Court Poised to Stick a Fork in Obama’s Recess Appointments

U.S. President Barack Obama holds a news conference in the Brady Press Briefing Room at the White House in Washington July 15, 2011. Obama on Friday said he would not support a $2.4 trillion plan to reduce the federal deficit without some tax hikes to increase revenues. REUTERS/Larry Downing (UNITED STATES - Tags: POLITICS BUSINESS HEADSHOT)

“Wait..wait..strike down..okay now, hold on..”          REUTERS/Larry Downing

Ken Klukowski writes: On Monday, the Supreme Court heard arguments regarding whether President Barack Obama’s appointments to the National Labor Relations Board (NLRB) are unconstitutional. The case will probably be a lopsided defeat for the president, with his own Supreme Court appointees expressing deep skepticism of the Justice Department‘s arguments.

If the Court goes the route it signaled during argument, all the rulings and regulations from that powerful body over a period of a couple years will be declared illegal, at least temporarily until a new Board can reconsider them.

Read the rest of this entry »


The Constitution’s Vanishing Act

For decades, Supreme Court justices have been rewriting key parts of our governing document.
Illustration by Barbara Kelley

Illustration by Barbara Kelley

Richard A. Epstein writes:  The United States Constitution is at its core a classical liberal document. But over the last hundred years, much of it has turned into a progressive text thanks in large part to Supreme Court justices who interpret it creatively, thereby skirting the laborious amendment process of Article V. Here, I address one major, if underappreciated, cause of the problem—the fine art of making its critical words and letters just disappear through the Court’s imaginative application of its power of judicial review. This constitutional disappearing act does not take sides in the longstanding debate over judicial restraint and activism. In some cases, it unduly expands judicial power; in other cases, it wrongly contracts it.

The two best illustrations of how this process works are found in the Eighth Amendment and in Article 1, which sets out the federal government’s taxing power.Cruel and Unusual PunishmentsThe Eighth Amendment reads in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Its use of the passive voice creates an interpretive ambiguity. Does the amendment bind only the federal government or does it bind the states as well? Using the word “excessive” twice in one 16-word sentence is not a model of clarity.

But for these purposes, the most critical word is “punishments.” The letter “s” has disappeared during the arduous process of constitutional interpretation. Just Google the phrase “cruel and unusual punishment,” and 1,740,000 entries come up. Add the “s” and that number drops by 80 percent to 330,000 entries, most of which refer to punishments without the “s.”

The importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime sentence for a fourteen year-old guilty of murder. In writing her opinion, Justice Elena Kagan included the “s” in quoting the clause. But during the analysis, that “s” disappears, thereby transforming the constitutional text:

The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense.

Justice Kagan faithfully references earlier cases that take her position. But the wealth of precedent does not conceal the major shift in constitutional focus. The prohibition against “cruel and unusual punishments” conjures up a list of punishments that should be rejected because they are cruel, no matter what the offense. The issue of proportionality never arises.

That interpretation makes sense because this clause is lifted word for word from the English Bill of Rights of 1689, after it accuses the deposed King James II of inflicting “illegal and cruel punishments.” The clause outlaws the rack, the thumb-screw, drawing and quartering, and other fiendish activities. In no sense did it outlaw the death penalty. Nor could that reading be sensibly made of our own Constitution, whose Fifth Amendment contains references to the death penalty in connection with due process, grand jury presentments, and double jeopardy.

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Pro-affirmative Action Side Mocked by Conservative AND Liberal Supremes

Buh-heeheheehee! Muh-huhuhuhahahahahha. Lemme catch my breath, whew..mm..buhuhuHAHAHAHAheheheee!

Hahahaha….B-b-b-b-b-Buh-heeheheehee! Muh-huhuhuhahahahahha. Lemme catch my breath,  whew..mm..buhuhuHAHAHAHAheheheee! I need a glass of water, give me a minute hahahhahaHAHAHA

Robby Soave reports: Proponents of race-based admissions had a rough time during oral arguments at the Supreme Court this week, as both the conservative and liberal wings of the court humiliated an attorney for the Coalition to Defend Affirmative Action for her faulty reasoning.

Shanta Driver, an attorney for the coalition, got off to a bad start when she said that the purpose of the 14th Amendment was “to protect minority rights against a white majority.”

Associate Justice Antonin Scalia immediately interrupted her.

“My goodness, I thought we’ve — we’ve held that the Fourteenth Amendment protects all races,” he said.

Read the rest of this entry »


Welcome to the Era of Unlimited Government!

obama-and-bush428  writes: It’s a telling coincidence that the latest scandalous revelation about the National Security Agency (NSA) is hitting the front pages just as the enrollment period specified by the Affordable Care Act (ACA, a.k.a. Obamacare) is getting started.

Each of these things underscores different but related aspects of the virtually unlimited state that has ruined the peaceful slumber of libertarian-minded Americans for decades. Whether we’re talking about surveilling citizens without any sort of serious legal oversight or forcing them to participate in economic activity in the name of health care über alles, the answer always seems to favor the growth and power of the state to control more and more aspects of our lives. Is it any wonder that a record-high percentage of Americans think the federal government is too powerful? Read the rest of this entry »


Making Government ‘Smarter’

Trying to do dumb things the smart way.

 

By  Jonah Goldberg

President Obama wants to make government “smarter.” Who could disagree with that? After all, it’s unlikely that even the biggest fans of big government believe the way government does what it does is the very best, very smartest way imaginable. Whether you’re an anarchist, a Leninist, or somewhere in between, everyone can agree that Uncle Sam could afford a few more IQ points.

Let’s put it another way. If government is going to do X, it should do X the smartest way possible. On that proposition both Occupy Wall Street and the Tea Party agree.

Alas, this momentary flash of consensus disappears before our eyes like a shooting star the moment we ask a related but very different question: Is it smart for the government to do X in the first place? For instance: I think it’s a dumb idea to tickle a grizzly-bear cub while it’s napping on its mother’s belly. But if I’m given no choice but to do it, I’ll eagerly inquire about what’s the smartest way to do a very dumb thing. And if I’m told there is no smart way to do such a dumb thing (which I assume is true), I’ll at least ask for tips on the least dumb way to do it.

In announcing his effort to make government smarter — an idea with a very old pedigree — Obama invoked two organizations he’d like government to emulate. The first was Google. We’ll return to that in a moment.

For years, many of the president’s critics, including yours truly, have complained that he’s always in campaign mode. Obama is more comfortable whipping up enthusiasm among his fans on college campuses than he is working with his own cabinet — never mind members of Congress — to actually get things done. So it was not without irony that the second exemplar Obama offered for the sorts of best practices the government should adopt was his own presidential campaign. It was “one of the most inclusive and most successful campaigns in American history,” he assured an audience largely composed of his own White House staff.

“We can’t take comfort in just being cynical,” the president admonished. “We all have a stake in government success — because the government is us.”

This is among the president’s favorite formulations, and it gets to the heart of the problem. The government is not “us.” The government is — or is supposed to be — a collection of agencies that do things taxpayers and voters want done. In short, it is a tool.

Read the rest of this entry »