Putting the 'Federal' Back in Federalist


I have zero idea about the legalities or environmental wisdom of yesterday's 8-1 Supreme Court ruling that Southern California's Air Quality Management District went too far in imposing strict emissions standards on vehicles, but this quote from Justice Scalia's opinion (as flagged by L.A. Times columnist Steve Lopez) is a laff riot:

[I]f one state or political subdivision may enact such rules, then so may any other; and the end result would undo Congress' carefully calibrated regulatory scheme.

Italics mine, to emphasize humor.

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  1. I don't understand what is funny here. You're going to have to explain.

  2. What's funny is that Scalia regularly gives speeches on the importance of the Constitution and then spouts off crap like this. Is there room in an Iraqi prison for him and the other justices?

  3. Right wing zealot nut case judges are all for states' rights when the good of private property is concerned, but the public good? Feh!

    Sure its carefull calculated. carefully calculated to assist private industry.

    This reminds me of people questions Scalia's ethics. There's no question about Scalia's ethics. He doesn't have any. He's a scumbag.

  4. Scalia, that great champion of federalism, once again demonstrates his commitment to principle, by telling a local government that it can't impose emission standards on its own buses.

    And wow, just by coincidence, that ruling just happens to be the preferred outcome of the petroleum industry.

  5. Sure its carefull calculated. carefully calculated to assist private industry.

    Assisting private industry? Those heartless BASTARDS. Everyone knows that only government employees can be trusted!

  6. HUH? -- What's funniest to me is the idea that Congress "carefully calibrate[s]" any "regulatory scheme."

  7. How about their World dominace carefully calibrated regulatory scheme?

  8. It makes for a fun tongue-twister: Try saying "Congress' carefully calibrated regulatory scheme" five times in a row without shooting yourself in the mouth.

  9. lol. Some of us got it Matt.

    "Carefully calibrated"?!

    Is Congress suddenly devoid of politicians and full of computer engineers?

    And when is any national regulation carefully calibrated? That's almost an oxymoron.

    Scalia is a hypocrite.

  10. This was an 8-1 decision. Which is the one non-"scumbag" judge? Take the evil, corrupt, industry (and jobs) supporting Scalia out of the equation and we now have a 6-2 decision. Feel better?

    Joe, why would the petrol industry care about emissions of fleet vehicles? Better emissions standards do NOT necessarily equate to reduced fuel consumption. (there are trick people pull to get better gas mileage that will make them fail automotive emissions tests in areas that require it) Or do you think they are worried about Hydrogen vehicles gaining ground? To which I would counter, they are likely looking at investing in (licking their chops over) that market as well. Good for them. Or is it electric cars they fear? Aside from nuclear and coal, the juice comes from oil as well - they don't entirely lose out there either.

    Lets ratchet up the intelligence level a bit. Did you guys hear about the engine a guy made that ran on water? I heard GM had the guy killed. Or was it the oil industry?

  11. 6 + 2 = 9

    I gradeated frum publik skool.

  12. There was no room for the principle of federal preemption in the original understanding of the Supremacy Clause. The federalist literature repeatedly stated that the federal courts would overturn state legislation only when it was *directly repugnant* to federal legislation. The current doctrine, going back to Marshall, is that the sum total of federal action *and inaction* in any area of policy reflects a coherent vision, and that any state action where the feds have foreborne to act is therefore an encroachment on federal prerogative.

    Most so-called "originalists" on the Supreme Court are just Federalist Society types who want to go back to the judicial activism of John Marshall (with a little substantive due process and substantive equal protection thrown in from Fourteenth Amendment case law, of course).

  13. "Congress' carefully calibrated regulatory scheme" is boilerplate lawyerese for big fat piece of legislation that (often) preempts state law.

    For example,

    "Congress considered various mechanisms to accomplish and balance this country's various interests and goals and chose a set of carefully calibrated tools. This careful calibration reflects the judgment of the Congress and the President that the federal choice of tools is the most effective means to improve human rights conditions in Burma" (Federal Burma Law, 181 F.3d 38)

    "This frustration occurs, Grant tells us, because Maine's uniform state-wide price neutralizes the carefully calibrated federal system of location adjustments. After all, the federal scheme recognizes that raw milk has" (Milk, 232 F.3d 8)

    "One should not minimize in any way the severity of the brutality suffered by the Lal family, but the standard, as established by Chen and our own cases is one of "atrociousness." This standard must be kept high to prevent the exception from destroying the carefully calibrated statutory and regulatory scheme." (Political asylum, 255 F.3d 998)

    "Congress accomplished this accommodation largely through careful calibration of the statutory procedures for challenging route applications. The scope of congressionally defined intervention as of right in route application proceedings is central to effectuation of BRRA's careful compromise." (Interstate carrier routes, 735 F.2d 591)

  14. Us lucky Californians pay a half dollar a gallon more than the rest of you for gas, about twice as much for electricity and yet we have the worst roads and schools in the nation, if not in the world.
    The best thing about it is that we voted for all this!

  15. Presumably the federal government's power to overrule state air-quality laws with its own comes from the same part of the Constitution where you'll find the federal government's power to pass air-quality laws at all.

    You know -- the part that doesn't actually exist.

    This certainly cannot be spun as a federalist decision. However, once you've decided that the government has a right to arrogate to itself the power to issue regulations on the quality of the air we breathe, you can't really go and complain that it's refusing to yield to the states. It *already* "refused to yield to the states" by passing air-quality laws in the first place.

  16. This was a decision to restrict government regulation of enterprise (yes!) and hopefully Scalia's funny (silly and haha), and surprising (coming from him) comment was not at the legal crux of the matter. We actually don't know the extent of any federalist considerations here. But, judging from the lopsided tally, I'm guessing it was a consideration for the more pro-intervention (liberal) Justices.

    You know, a stopped clock...Geez, I sound so biased.

    BTW, I also wish they would give a "who voted how" tally in these SC decision reports.

  17. The surest sign from a public standpoint that the U.S. no longer is a federal republic is that we refer to the national gov't as FEDERAL. They won the debate. States no longer have any real check on the national at all.

  18. Hey joe - no comeback or are you scurrying like the rest of your ilk to discover some evidence that all those prison guards ain't democrats?

  19. You actually raised a number of good points before you morphed back into bitch-boy, Walter. I was actually taking the family to the park, and fixing margueritas before I came back.

    It's a lovely day out, Mr. Social Life.

    As to why the vote was so lopsided, and why the environmental rules just happen to favor those activities that Big American Oil already prefer to do, might I suggest: Big Oil owns so many politicians that the law is blatantly skewed in their favor?

  20. Good old joe - Did you ever say hi to Mehitabel for me? Or figure out why I asked?
    Is your portfolio loaded with Big Oil stocks?
    Ask Bill Gates what happens to companys that don't buy politicians.
    I assume the Margueritas are made with domestic Tequilla.
    Treat your kids nice and don't beat your wife just because I upset you. Wifes and kids are nice.

  21. Bigbigslacker,

    Two of the most common methods for making city buses run cleaner is to require a more complicated fuel blend, and to switch to natural gas. The petroleum industry would prefer to sell lowest common denominator gasoline and diesel.

    And while some oil companies, notably BP, have made an effort to get ahead of the curve, the big American companies have adopted a strategy of sqeezing out the last drops of profit from old, dirty technologies, rather than investing proactively.

    And I knew this before I read in the Napa News story, "Justices, on a 8-1 vote, sided with oil companies and diesel engine manufacturers who claimed that local pollution rules conflict with national standards."

  22. joe, would you invest in a new refinery with the assurance you would not be allowed to recover your investment?
    Would you try to keep production up when you were guaranteed no competition for your output however little it was?
    No, regulations and stupid environmental laws have worked hand in glove with the oil companies to give them monopoly status by eliminating competitors and independent dealers who bargained prices down.
    How would you like to make diesel engines and be told that your standards had to be just slightly different in every political subdivision you sold in? How would you like the have a billion dollars in tooling made worthless by some legislating twit whose knowledge of chemistry causes him/her to panic at the thought of uncontrolled dihydrogen oxide?

  23. Joe,

    OK, Scalia is in big oil's pocket. How do explain the fact that RBG et al voted along with him.


    The vote was 8-1 and Souter wrote the dissent. No need to explain further who voted what.

  24. "I'd be alright with them passing their own emissions."

    Approximately 50% of all automotive emissions come from approximately 10% of cars. Solution: put infrared-based emissions measurement boxes that measure emissions from cars on the fly.

    Then, when a car with high emissions is detected, eliminate it with an RPG (confiscated from Iraqis).

    Mark Bahner (Supreme Leader, Better Libertarian Solutions for America)

  25. I really don't care in the short term if California wants to screw their businesses out of biz.

    But all you people kvetching about the ruling, consider Alabama or Arkansas passing their own emission standards that are LESS STRINGENT than the "carefully calibrated Fed standards". What would you want the ruling to be?

  26. I'd be alright with them passing their own emissions.

    I have no idea whether Alabama has air quality problems or not. I do know that certain realities of geography in California, and here in Denver, creates a bigger problem then other parts of the country experience. There are days of the year where we are simply told to avoid exertion do to air quality problems. If another part of the country doesn't have the issue then let them follow different standards. The effects are local.

    I'm also unconvinced by the business interests. Companies may not like it, but they can innovate just like everyone else. If it doesn't create jobs here it will somewhere.

    In any case I took the initial point of the thread to be the two faced nature of Scalia. He's in favor of state's rights when it suits "conservative values". He's simply a good representative for conservatives. He stands for the party's right wing, and unfortunately nothing else.

    Questioning the rest of justices support says nothing about Scalia's personal inconsistency. Other justices will get their own threads in time. Scalia's a shining example of why replacing liberal activist judges with conservative activist judges is dumb.

  27. David Nieporent,

    you are taking the 'fun' out of the discussion here 🙂

    (Scalia bashing is/was fun)

  28. Matt seems to find humor in the idea of {Congress' carefully calibrated regulatory scheme.} from the view that Congress' regularity schemes are less than "carefully calibrated."

    I disagree. The calibration process is:

    1. If I regulate X how many more voters be pro than con?
    2. How many votes do I need to get reelected?
    3. How many regulations do I have to back to make 1>2?
  29. 1) Scalia, that great champion of federalism, once again demonstrates his commitment to principle, by telling a local government that it can't impose emission standards on its own buses.

    In fact, he did not say that, Joe. He said, in fact, "It does not necessarily follow, however, that the Fleet Rules are pre-empted in toto. We have not addressed a number of issues that may affect the ultimate disposition of petitioners? suit, including the scope of petitioners? challenge, whether some of the Fleet Rules (or some applications of them) can be characterized as internal state purchase decisions (and, if so, whether a different standard for pre-emption applies), and whether ?209(a) pre-empts the Fleet Rules even as applied beyond the purchase of new vehicles (e.g., to lease arrangements or to the purchase of used vehicles). These questions were neither passed on below nor presented in the petition for certiorari. They are best addressed in the first instance by the lower courts in light of the principles articulated above."

    In other words, the question you raise wasn't before the Court, and the Court remanded the case to the lower courts to decide what the CAA said about that issue.

    2) I understand that newspapers can't get stories about judicial rulings correct, but is it too much to ask that people here pay a little attention? Since reporters don't understand law, they have to view every court decision through a paradigm of politics. But court decisions are not generally about politics. They are generally about law. This case was not about federalism, "big business," "big oil," "environmentalism," or any other buzzwords. This case was about the interpretation of a phrase in a federal statute.

    The reason it was 8-1 was not because of corruption, politics, or the like; it was 8-1 because eight justices agreed that the word "standard" in the phrase, "No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part." in the Clean Air Act applied to rules about purchases as well as rules about sales.

    As Scalia correctly pointed out, it doesn't make a whole lot of sense to say that a state can't ban the sale of X but can ban the purchase of X.

    (One can argue that the Clean Air Act is unconstitutional -- but that wasn't the question before the court.)

    Not everything is about politics. Most cigars are just cigars. Yes, in the handful of well publicized cases when the court is ruling about a topic such as abortion, justices may be ruling based on their own policy preferences. But in the vast majority of cases, they're doing law, not politics.

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