West Virginia v EPA...Good for All!

"Almost heaven, West Virginia, Blue Ridge Mountains, Shenandoah River" - John Denver

For the past several years, I have been trying to figure out just how we arrived at this point in our history, where there is so much vitriol and hatred spewed on a daily basis. Sitting in church on the day before our country celebrated its independence, our parish priest, in an attempt to tie the Gospel into our country’s struggle for freedom, drove home a point that would serve us well in today’s society. Simply put, he said that all beliefs and ideals do not constitute a good versus evil paradigm - in most instances, there are people of good will and faith on both sides. I’m sure at this point you are wondering what this has anything to do with the SCOTUS ruling in West Virginia v EPA.

It may be a stretch, but here goes. It is my earnest belief that the ruling in this particular case will start the healing process in our nation, allowing us to get back to common interests rather than the few things that divide us. I will now ask that you grant me some liberties as I move through this, e.g. some cherry picking, naivety, and maybe even poking some fun. And please keep in mind that, although this case focuses on the very serious issue of the protection of our environment, I will move past this quickly, rather focusing on the larger implications of this ruling.

As we all know by now, SCOTUS, in West Virginia v EPA, ruled 6-3 in favor of West Virginia, affirming that the EPA does not have the statutory authority to regulate power plant emissions and the requisite authority needs to come from Congress.

Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible "solution to the crisis of the day." New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion. - Chief Justice Roberts

In short, SCOTUS told Congress to do their job - but what exactly is Congress supposed to do? As with most complex issues, I often see a comment on a Internet message board that says - “Explain this to me like I’m 5 years old”. I’ll do you one better - how about I explain it like I was 5 years old, as this was about the time I was introduced to the concept of Congress and why it was so important. For non-Boomers, you may have to look this up, but on Saturday mornings, intermixed with our cartoons, there was an awesome thing called Schoolhouse Rock. And although Conjunction Junction was my favorite, I must have listened long enough to Three Ring Circus (how apropos today) to know that there are three branches of government, with Congress being the most important, as it represents the people.

DO YOUR DAMN JOB

Is it any wonder we are in this position today, given the ineptitude of our elected representatives? It appears that the current members of Congress have two priorities, Priority #1 - get elected, Priority #2 - see Priority #1. And the wheels on the bus go round and round. But what about the peoples’ priorities? Someone has to drive the bus, right? Here’s an idea - let’s pass this off to the three letter agencies to do the hard work. We can tell our constituencies things are getting done, we don’t have to do any work, and if things go bad, we can blame someone else. This trifecta of governing has evolved into a situation where there is far too much power being shifted away from Congress to the President and the Supreme Court.

Following the ruling, the usual suspects took to social media to spew their histrionics, full of fear and hyperbole. Enter Senator Elizabeth Warren, who Tweeted

Not so fast!

How has SCOTUS destroyed the federal government’s ability to fight back? This particular case dates back to the Clean Air Act, which was enacted in 1970. On two occasions, the act was amended by Congress, in 1977 and 1990. In 1977, the amendment passed by a 326-49 margin in the House, with a 73-7 margin in the Senate. Again, in 1990 the Clean Air Act was amended by 401-21 and 89-11 margins. There is no reason to discuss the makeup of Congress in those years, for the numbers are overwhelmingly in favor of the amendments. Perhaps Senator Warren forgot how a Bill becomes a law.

Amend me, please!

DO YOUR DAMN JOB, PART 2

As I think about the ineptitude of Congress, I can’t help but think it’s not entirely their fault. Someone voted for these folks - OK, it was us! We the people exercised our right as Americans to choose who will represent us. Maybe, just maybe, we need to do a better job?

When trying to make sense of these SCOTUS rulings, it oftentimes makes more sense to bypass the Syllabus, and go straight to the Opinion, or in this case, the Dissent. Justice Kagan wrote the Dissent in this case, and she wrote something that I had to read several times, and it was not because of the legalese or the citations.

First, Members of Congress often don’t know enough— and know they don’t know enough—to regulate sensibly on an issue. Of course, Members can and do provide overall direction.

Second and relatedly, Members of Congress often can’t know enough—and again, know they can’t—to keep regulatory schemes working across time. Congress usually can’t predict the future—can’t anticipate changing circumstances and the way they will affect varied regulatory techniques. - Justice Kagan

After checking and rechecking to make sure this was in the Dissent, my inner dialogue got a little salty - WTF, if this the best we can do as a country? Correct me if I’m wrong, but what Justice Kagan is saying is that not only can’t we expect our elected representatives to “know enough” about complex issues, but they “can’t know enough” to keep up. Wow - this is a stunning and sad admission coming from a Supreme Court Justice.

Good for All

We the people need to do our best to elect those to represent us who are not only qualified to do so, but will also accept the responsibility. It may take some time, but hopefully not as long as it took for us to get in this mess. And although I do not agree with AOC on, anything, I think she may be on to something with this Tweet

OK, make your case!

Aside from the hyperbole and fear for the end of the planet, she has set forth an idea. Now take the next step by convincing the other members of the House that this is GOOD. In the process, you may hear others things that are also GOOD. Imagine if our elected representatives understood that it’s possible that their adversaries are actually coming from a GOOD position. Is it possible that laws can be passed that actually represent the GOODNESS in each of us?

Obviously, we will have to wait for this answer, but in the meantime, I will search for the answer in the founding documents. I watched Schoolhouse Rock so many times, I have them memorized - let’s see if I can still remember how it goes.

We the People…well, let’s just focus on that for now.