Antonin Scalia

Justice Roberts Monday Morning Revenge Against the Obama Administration

His Obamacare apostasy will help crush EPA's emissions tyranny

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Conservatives were totally flummoxed by John Roberts' apostasy in upholding Obamacare's subsidies through federal exchanges last week.

For the second time, it seemed, he had stepped in and saved the law. Conservative columnist George Will accused

Roberts swearing in
White House

Roberts of assuming the role of a legislator, thereby "damaging all institutions, not least his court." Likewise, John Podhoretz called Roberts' logic "twisted" and "ludicrous." Jonathan Adler, the law professor who was the legal brains behind the lawsuit, observed that the "umpire has decided its okay to pinch hit to ensure the right ream wins." And yours truly, in a fit of pique, declared that on ObamaCare, "Scotus Fuctus"!

Some folks on Twitter even wondered if the Obama administration had Hastret-style poop on him.

But I note in my column this morning that perhaps there was a broader purpose behind Roberts' apostasy. He yanked the opinion from the hands of the liberal bench and used it to start reining in the "soft despotism" of the administrative state. His Obamacare ruling refused to rely on Chevron deference to uphold the law. This deference gives executive bureaucracies wide latitude to exploit statutory ambiguities to advance their political agenda without any pushback from the courts. He denied that the IRS had any authority or expertise to interpret the law as it saw fit without second-guessing by the courts.

And this morning the Supreme Court's 5-4 ruling in Michigan vs. EPA started applying the new Chevron oversight. I note:

Writing for the majority, Justice Antonin Scalia lambasted the agency for ignoring the enormous costs its mercury emission standards imposed on coal-fired power plants. Even though Scalia himself has been somewhat less hostile to Chevron deference than Roberts, he noted that the EPA overstepped its "bounds of reasonable interpretation." Chevron, he scathingly observed, "does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not."

Roberts might have retreated on Obamacare to muster ammunition to launch a war for limited government on other fronts.

Go here to view the whole column.

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    1. ^thank you. +1.

    2. Agreed. Just silly.

    3. Its like the shitty referee who makes the terrible call, then whispers to the disadvantaged team, “Don’t worry – I’ll get you back!”

      Either make good calls, or don’t, ref. None of this “little bit for you, little bit for you” arbitrary ‘fairness’

  1. “Roberts might have retreated on Obamacare to muster ammunition to launch a war for limited government on other fronts.”

    My ass. That law is going to cost this country dearly, and the rationale for allowing it to survive twice now, despite inherent deficiencies in the law, sets a horrible precedent for the future.

    1. Yeah, that was an incredibly ridiculous statement.

    2. I have about the same opinion of Roberts that you do but, to give the devil’s advocate his due: The decision was decided 6-3, so it’s conceivable that Roberts flipped after seeing it was already lost.

      1. It’s possible, but he was the deciding FUCK YOU in the previous insane decision on the penaltax.

    3. Its like saying a guy cut his feet off so he could spend more time *working with his hands*.

      The idea that one compensates for the other is insane and idiotic.

  2. OT: Just started a new job today, and it’s suspiciously easy. I’m waiting for the other shoe to drop.

    1. Justice Roberts will ban your position in his next ruling.

    2. They’ll probably have you take business trips to Warty’s Dungeon.

    3. Mos jobs are pretty easy for the first week or two, JJ. Don’t worry, you’ll fail upward soon enough.

      1. Nah man, the last place I worked was total baptism by fire. This place is…well, it’s like working for Globex, and my boss legitimately looks just like Hank Scorpio.

        1. Well, keep this in mind: Hank Scorpio was a fantastic boss.

        2. You know, JJ, I was really hoping you’d say Spectacular Optical instead.

          Keeping an eye on the world.

        3. Flamethrower training isn’t until next week.

    4. That’s a mighty big shoe, ought to cause a minor earthquake.

    5. I’ve been working at a new job for one year as of tomorrow. I’m in the same position where I spend large portions of every day without having anything to do. I keep getting that “any day now” feeling, but it’s been a year.

      And the salary here is a 50% increase over my last job. Both the lack of work and high pay are most likely because it’s a government mandated NPO.

      1. You lucky bastard. I’m making $5/grand a less year than I was at my last place, but I’d been laid off for a couple of months so I needed to get off my lazy ass and get back to it. Still, I earned every cent at the last place I worked, as it was a hellscape. Here, despite making less, I feel like I’m overpaid.

        Probably drawing too many conclusions from 1st day, but they’ve said repeatedly this is going to be my main area of responsibility, and I could train a chimp to do it.

        1. I hear you. I started here on contact working on a project. That was balls to the wall work every day. I got lucky that one of the crew was retiring right as the project was finishing up.

          I guess the fact that the guy was retiring after 30+ years could have been a tip.

  3. Roberts might have retreated on Obamacare to muster ammunition to launch a war for limited government on other fronts.

    Occam’s Razor disagrees with you.

    1. Yeah, I don’t see where this sense of libertarian optimism is coming from. The EPA ruling will just cause them to go find some new numbers to fake.

      1. “Benefits of mercury ruling: ELEVENTY BAZILLION DOLLARS!”

      2. “The EPA ruling will just cause them to go find some new numbers to fake.”

        Exactly. its just asking the agency to do more paperwork before arbitrarily fucking everyone over.

  4. Some folks on Twitter even wondered if the Obama administration had Hastret-style poop on him.

    I googled before I ask this, as internet etiquette dictates… what is a Hastret-style poop? Is that anything like a Cleveland steamer?

    1. It’s a lot like Santorum, but less sticky.

    2. I think it has something to do with Greco-Roman wresting.

    3. It’s what happens when you can’t spell Hastert.

      1. Yet still, what’s a Hastert-style poop? I’ve heard of having dirt on someone, and I’ve heard of people having poop on them, usually a shoe, but I’ve never heard of ‘poop’ as though it were dirt. So I wonder if maybe this Hastert fellow literally poops on his subordinates in a show of dominance.

        1. Maybe, but you gotta remember that Shika is Indian. You know how crazy foreigners are with Americanisms.

          1. She’s Indian!?!? Next you’ll tell me that she’s for unrestricted immigration.

  5. He yanked the opinion from the hands of the liberal bench and used it to start reining in the “soft despotism” of the administrative state.

    Which is really strange, since he actually affirmed an action of the administrative state that was not authorized by statute.

    His ruling rejected the principle of Chevron deference to hand the administration a victory as everyone expected he would do if he upheld the subsidies.

    I haven’t fully digested how Chevron deference fared in his opinion, but from what I can tell, he couldn’t apply Chevron deference because it wouldn’t extend far enough to allow the tax bennies the IRS wanted to extend without legislative approval.

    In order to give the case to the IRS, he essentially had to write a new doctrine, empowering the judiciary (and perhaps the executive?) to rewrite/interpret statutes to advance some overall purpose that the actual statute didn’t do a good enough job of advancing.

    Chevron deference was neither limited nor repealed by Roberts. I believe it was supplemented by this new doctrine, to be rolled out when even Chevron can’t get the court where it wants to go.

    Roberts couldn’t attack deference to administrative agencies in Burwell and also give the win to the IRS, which, as it happened, needed even more deference to win in Burwell.

    Burwell doesn’t rein in the administrative state at all. It cuts it even further loose from legislative language and Congressional oversight and control.

    1. That’s how I view it.

      Let’s see how things will change once these agencies internalize his ‘do whatever you have to do to advance the ‘unspoken legislative agenda’ stance.

      We’ll look back on Chevron as the good old days of limited government.

  6. He ruled this way because most power plants have either already implemented the new requirements or shut down. In other words, the EPA’s reaction to this ruling is “Meh.”

    1. There’s a whole lotta coal closing down and being replaced by natural gas.

    2. I hadn’t heard that but it doesn’t surprise me. Call me cynical but I think Roberts didn’t mean a word of his gay marriage dissent. Him and all of that posturing and reading from the bench. Bullshit. I think he wrote that opinion because he knew Kennedy had already decided it and he knew his vote didn’t change the result. If Kennedy had gone the other way, Roberts would have switched his vote.

      Given what you say, this opinion would fit in with his MO. He wrote a strong sounding opinion that was a SOP to conservatives but in reality meant nothing.

      1. He wrote a strong sounding opinion that was a SOP to conservatives but in reality meant nothing.

        Since Roberts’s most vocal critics have been conservatives (liberals like to target the bombasts, especially Scalia, not to mention their unique brand of hate for Thomas), disingenuously giving them a paean seems like pouring salt on the wound more than anything else.

        1. It is him saying he is smart and they are stupid. I really like Cruz’s idea of subjecting these bastards to a national referendum every four years. I would love to see that happen and Roberts be remembered as the Chief Justice who fucked up so badly he cost the justices lifetime tenure.

  7. Nonsense. I think it’s silly to treat the inconsistency of the SC, and damage done by the Obamacare ruling, as some sort of ‘broader purpose, secret and better-overall super-strategy to protect the checks-and-balances and reign in the state.

    Obamacare case was D-Day, and we lost. Who cares whether Roberts wins a tiny battle in a tiny town the next day against the EPA.

    And, my guess is that there was no ‘yanking’ whatsover of the opinion by Roberts – I bet the liberal justices (and Obama and many other Democrats) took a huge and gloating pleasure in having a Bush-appointed, conservative justice write the justification for such an ignoration of justice. It was, to liken it to 1984, like having Winston Smith ‘yank’ the honor of giving the Big Brother broadcast from O’Brien.

    1. I think the ACA decision is another one of those decisions that is helping to destroy the republic. Not that the courts are alone; the other two branches want to destroy it, too.

  8. “[…]Roberts might have retreated on Obamacare to muster ammunition to launch a war for limited government on other fronts.[…]”

    Uh, yeah, and FDR instituted S/S as a warning about how unlimited promises of welfare can bankrupt even a very wealthy nation!
    Unfortunately, no one has been taking the lesson to heart.

  9. I don’t think it would have mattered if Roberts voted with the conservatives in the ACA case – it still would have been 5-4 in favor.

  10. Not to bring the focus back to getting gay married, but here is Slate arguing against Polygamy:
    http://www.slate.com/articles/…..ssent.html

    If polygamy were made legal, I could feel slightly better about the affront to intellectual integrity that was the Kennedy ruling. But that’s not going to happen.

    The Kennedy ruling itself in many ways reinforces the idea that polygamy should not be allowed, and I wonder if it wasn’t written in such a way as to be used against future polygamy cases.

    The gays get their cake, but that’s it.

    1. I’d push for it. Push the envelope until either the government drops secular marriage licensing altogether or secular marriage is defined so broadly that it doesn’t matter any more. Polygamy, pet marriage, robo-marriage, self-marriage, whatever.

      Either way, we’ll get the ideal of social unions (religious or whatever) being separate from (though influencing the terms of individual) secular marriage contracts.

      1. 3. Exclusion.. . . they just have to pair up, leaving one adult, at most, unaccounted for. And when they do, each couple gets the same spousal benefits as a monogamous couple.

        Which was the exact same argument used *against* gay marriage – homosexuals could get all the benefits of marriage, they just had to choose an opposite sex partner.

        He lists ‘5 reasons’. The first one is the only one that is close to a ‘real’ reason – and only because its looking to justify through the words of the SC justices. The other 4 are just . . . WTF?

        Divided loyalty? As if married couples are somehow immune to this.

        Conflict – as a reason to deny polygamous marriages, this is horrible. Yes, there’s a greater chance of some sort of conflict arising as you increase the number of people. But if conflict is a real reason to deny this, then the only ‘safe’ marriage is no marriage at all.

        Plus, there’s always one sure-fire way to sort out conflicts – divorce. There’s no particular reason that *secular* marriage (separate from religious reasons) should care about marriage longevity any more than secular contracting cares about it in any other area.

        1. What’s funny is gay couples could have had civil unions probably about a decade ago nationwide if they had pushed for that. But it was considered an affront.

          His reasons were ridiculous, but those were part of the arguments made by Kennedy. Most of the opinion had nothing to do with law and just waxed philosophically about marriage as an institution.

        2. The first one is the only one that is close to a ‘real’ reason – and only because its looking to justify through the words of the SC justices.

          Honestly, I’m not particularly convinced even that’s a particularly good reason. But then, I never quite got the immutability argument. Whether something is a choice or not doesn’t change whether it’s a good thing to have.

        3. The 1st reason is that gays & lesbians can’t help whom they’re sexually attracted to, but:

          (1) Nobody can help who they’re attracted to; that shouldn’t give you the right to pick anybody as sex partner, w or w/o their permission, which is what a legal policy of satisfying your sexual attraction would seem to require.

          (2) Who says you have to marry someone you like to fuck, or have to fuck someone you marry?

          (3) If you leave it up to official psychiatry bodies to decide who it’s normal to have sex w or to marry, where does that lead? Sex by prescription, as Szasz wrote.

          (4) If you’re married to A, & can’t help wanting to marry B, if the law stands in your way, wouldn’t that be the same as a law standing in your way because you’re the same sex?

    2. Looks like the Slate piece is more about whether having more than 1 spouse is a good or bad idea, or whether it’s as good or bad an idea as marrying someone of the same sex. But I haven’t read the Sup. Ct. opinions, so maybe that’s what they seem to be about!

      As you may know, I think same-sex marriage is an unjust overturning by the sovereign of customary law & language, closely analogous to what they did w money units long ago. However, prohibitions on polygamy, i.e. on being a spouse in more than 1 marriage at a time, I think are an entirely different order of thing: an unjust interference w individual liberty. Unfortunately they may not legally be analyzed by US courts in those terms; from the glimpses I’ve gotten at the same-sex marriage ruling, it’d seem very hard not to strike down bans on polygamy & its legal recognition, so something good may come out of the same-sex marriage ruling?unless it really works like the Slate writer’s analysis, i.e. this is icky, that is not, so no go.

      1. i.e. this is icky, that is not, so no go.

        This is how its *always* worked. From the original US bans on polygamy (and the Mormon persecution) to ‘miscegenation’ to homosexual persecution. People found those things icky and looked for post hoc rationalizations to justify wiping them out.

        If it weren’t for that, its likely that American family law would have, long ago, branched out to accomodate unions other than male/female and the associated complications of what to do when those unions are broken up.

        I mean, FFS, we can handle the merger and split of multi-billion dollar corporations but a three-person union is too much for society to handle?

  11. | observed that the “umpire has decided its okay to pinch hit to ensure the right ream wins.” |
    Go Ream!

  12. I honestly don’t know what to make of some of the stuff I’m reading.

    One upon a time there was a slave, and his name was Dred. Justice required that the Court should free the man, but doing so would have required us to fundamentally change our entire social and economic system, so the Court restrained itself and ruled not only that Dred was still slave but also that because he was a slave, he didn’t have any standing in court.

    Most everyone recognizes that as about the worst decision ever. Turns out, we had to fundamentally alter our entire social and economic system anyway–it’s just that since the Court couldn’t bring itself to do its job and protect our Constitutional rights restrain itself, we ended up having to work it out over the course of 150 years from the battlefield to Civil Rights movement.

    I’m not in favor of the EPA screwing up the economy, but that doesn’t mean I’m going to cheer about the Court using the same screwed up abdication of their responsibilities just because they used it to justify doing something I like.

    I want them to overturn their decisions on the Commerce Clause–even if it means we have to fundamentally change the way the government does…everything. We may live to see the day when the Millenials come to legislatively take away our Second Amendment rights, and when that happens, I want the court to stand up for my rights–no matter what that means to the murder rate.

    1. Protecting our individual rights tends to be better for all of society generally, but neither I nor my rights exist for society’s convenience. And I am not encouraged by the Court if they–once again–undermined doing what needs to be done just because following the Constitution is so damn inconvenient and expensive. Roberts saved ObamaCare’s ass twice because it would be too inconvenient for society if we had to change–and that’s a bullshit justification.

      I’m not going to pretend that bullshit tastes great just because it happened to fall my way this time.

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