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"Clear delegation" is the key phrase, there. The Court rejects the idea that Congress can create broad grants of authority and instead propounds the idea that i

"Clear delegation" is the key phrase, there. The Court rejects the idea that Congress can create broad grants of authority and instead propounds the idea that it has to explicitly authorize every potential scenario.

tmaly 4y ago
Consider this. What would happen to the powers of future Congresses if SCOTUS had ruled the other way? Would any agency granted broad authority be able to override the wishes of a future Congress? What would happen to our form of representative government under this case?
lolinder 4y ago
They talk elsewhere about "clear delegation", and it doesn't have to do with the scope of the delegation, it has to do with its precision: > Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. I can find nowhere where they say that Congress cannot delegate broad powers, only that it's not obvious that Congress did or that they intended to. Do you have a citation to the contrary, or are you making assumptions based on the news coverage?
- hindsightbias 4y ago
  “something more than a merely plausible textual basis for the agency action is necessary” I love it when textualists go anti-textualist. If people are going to espouse an absolutist ideology, they should at least be consistent.
  - lolinder 4y ago
    "Beyond merely plausible" is what they're looking for, not "beyond textual".
- scarmig 4y ago
  Requiring Congress to precisely enumerating every possible use of authority indefinitely into the future is by definition limiting the scope of authority that Congress can delegate. Imagine Congress passes an act next year banning abortion, and creates a new agency to enforce that act. The next year, a new method is invented that can induce abortions. Can that agency regulate it? By the logic of the Court, it can't, because Congress never explicitly authorized regulation of that particular form of abortion (because it didn't exist yet).
  - lolinder 4y ago
    You're still assuming that the Court says Congress needs to enumerate powers. I don't see that. I see the Court saying that Congress didn't explicitly grant broad powers. Do you have a citation that shows that the court is saying that Congress cannot grant broad powers?
    - scarmig 4y ago
      You can read the particular text granting the authority here: https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapI-partA-sec7411.htm https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html... If you think that isn't a broad, explicit grant of authority to regulate air pollution from stationary sources, I don't know what to tell you. The majority on the decision are basically saying, "well, my gut says they didn't mean that much authority, so we're going to shut down this program."
      - rayiner 4y ago
        The specific delegation is the power to set "standards of performance," which is explicitly defined: "term 'standard of performance' means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction...." The term "system of emissions reduction" means control technology like scrubbers. What the law says is that the EPA can do is look at the state of the art for things like particulate matter scrubbers, and set an emissions standard based on the reduction that can be achieved using those technologies. But it's infeasible using current technology to scrub out CO2 from power plant emissions.
- pierrebai 4y ago
  Just read the dissenting opinions. That you chose not to, clearly, is a choice you made to avoid confronting differing viewpoints. Also, consistently and repeatedly asking others to research for you is an easy debating tactic used frequently to bury inconvenient facts behind a barrage of requests.
cryptonector 4y ago
When the consequences of an executive agency's rulings are a) not clearly within their delegated powers, and b) sufficiently far-reaching that Congress should have authorized them more explicitly, then it makes sense to say that Congress must be more specific.
- scarmig 4y ago
  From Kagan's dissent: > Section 111(d) thus ensures that EPA regulates existing power plants’ emissions of all pollutants. When the pollutant at issue falls within the NAAQS or HAP programs, EPA need do no more. But when the pollutant falls outside those programs, Section 111(d) requires EPA to set an emissions level for currently operating power plants (and other stationary sources). That means no pollutant from such a source can go unregulated: As the Senate Report explained, Section 111(d) guarantees that “there should be no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health or welfare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that language, the majority calls Section 111(d) a “gap-filler.” Ante, at 5. It might also be thought of as a backstop or catch-all provision, protecting against pollutants that the NAAQS and HAP programs let go by. But the section is not, as the majority further claims, an “ancillary provision” or a statutory “backwater.” Ante, at 20, 26. That characterization is a non-sequitur. That something is a backstop does not make it a backwater. Even if they are needed only infrequently, see ante, at 6, 20, backstops can perform a critical function—and this one surely does. Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance’s emission from existing stationary sources. In that way, Section 111(d) operates to ensure that the Act achieves comprehensive pollution control. That's pretty damn explicit.
car_analogy 4y ago
You are conflating "unclear" with "broad".
- scarmig 4y ago
  Congress gives the EPA the authority to set "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction." That's pretty clearly a broad delegation of regulatory authority.
rayiner 4y ago
No, the key phrase is "magnitude and consequences." The whole point of the "major questions doctrine" is that routine scenarios can be delegated, but authority to address a sweeping nationwide issue cannot be justified on the basis of a delegation to address a limited set of scenarios. To use an analogy, nobody is saying that the DOJ needs authority to create drug diversion programs. But this is like the DOJ pointing to the drug laws to justify a sweeping effort to combat the obesity epidemic.
- scarmig 4y ago
  The analogy here would be Congress granting the DOJ the authority to create drug diversion programs, a new drug hitting the scene that requires a response not explicitly called out in the initial legislation (e.g. distribution of naxolone), and the Supreme Court then declaring that response illegal because giving out naxolone just seems like too big a deal to be decided without involving Congress.
  - rayiner 4y ago
    No it isn’t. The Clean Air Act is all about requiring polluters to use control technology, and requiring new sources to use better and more expensive control technology than existing sources. That’s the program Congress designed. Restructuring the energy industry to address climate is a different solution to a different problem, related only by the commonality of emissions into air. It’s like using drug laws to regulate processed foods because both involve harm caused by ingesting things.

tmaly 4y ago

Consider this. What would happen to the powers of future Congresses if SCOTUS had ruled the other way? Would any agency granted broad authority be able to override the wishes of a future Congress? What would happen to our form of representative government under this case?

lolinder 4y ago

They talk elsewhere about "clear delegation", and it doesn't have to do with the scope of the delegation, it has to do with its precision: > Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. I can find nowhere where they say that Congress cannot delegate broad powers, only that it's not obvious that Congress did or that they intended to. Do you have a citation to the contrary, or are you making assumptions based on the news coverage?

hindsightbias 4y ago
“something more than a merely plausible textual basis for the agency action is necessary” I love it when textualists go anti-textualist. If people are going to espouse an absolutist ideology, they should at least be consistent.
- lolinder 4y ago
  "Beyond merely plausible" is what they're looking for, not "beyond textual".
scarmig 4y ago
Requiring Congress to precisely enumerating every possible use of authority indefinitely into the future is by definition limiting the scope of authority that Congress can delegate. Imagine Congress passes an act next year banning abortion, and creates a new agency to enforce that act. The next year, a new method is invented that can induce abortions. Can that agency regulate it? By the logic of the Court, it can't, because Congress never explicitly authorized regulation of that particular form of abortion (because it didn't exist yet).
- lolinder 4y ago
  You're still assuming that the Court says Congress needs to enumerate powers. I don't see that. I see the Court saying that Congress didn't explicitly grant broad powers. Do you have a citation that shows that the court is saying that Congress cannot grant broad powers?
  - scarmig 4y ago
    You can read the particular text granting the authority here: https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapI-partA-sec7411.htm https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html... If you think that isn't a broad, explicit grant of authority to regulate air pollution from stationary sources, I don't know what to tell you. The majority on the decision are basically saying, "well, my gut says they didn't mean that much authority, so we're going to shut down this program."
    - rayiner 4y ago
      The specific delegation is the power to set "standards of performance," which is explicitly defined: "term 'standard of performance' means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction...." The term "system of emissions reduction" means control technology like scrubbers. What the law says is that the EPA can do is look at the state of the art for things like particulate matter scrubbers, and set an emissions standard based on the reduction that can be achieved using those technologies. But it's infeasible using current technology to scrub out CO2 from power plant emissions.
pierrebai 4y ago
Just read the dissenting opinions. That you chose not to, clearly, is a choice you made to avoid confronting differing viewpoints. Also, consistently and repeatedly asking others to research for you is an easy debating tactic used frequently to bury inconvenient facts behind a barrage of requests.

cryptonector 4y ago

When the consequences of an executive agency's rulings are a) not clearly within their delegated powers, and b) sufficiently far-reaching that Congress should have authorized them more explicitly, then it makes sense to say that Congress must be more specific.

scarmig 4y ago
From Kagan's dissent: > Section 111(d) thus ensures that EPA regulates existing power plants’ emissions of all pollutants. When the pollutant at issue falls within the NAAQS or HAP programs, EPA need do no more. But when the pollutant falls outside those programs, Section 111(d) requires EPA to set an emissions level for currently operating power plants (and other stationary sources). That means no pollutant from such a source can go unregulated: As the Senate Report explained, Section 111(d) guarantees that “there should be no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health or welfare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that language, the majority calls Section 111(d) a “gap-filler.” Ante, at 5. It might also be thought of as a backstop or catch-all provision, protecting against pollutants that the NAAQS and HAP programs let go by. But the section is not, as the majority further claims, an “ancillary provision” or a statutory “backwater.” Ante, at 20, 26. That characterization is a non-sequitur. That something is a backstop does not make it a backwater. Even if they are needed only infrequently, see ante, at 6, 20, backstops can perform a critical function—and this one surely does. Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance’s emission from existing stationary sources. In that way, Section 111(d) operates to ensure that the Act achieves comprehensive pollution control. That's pretty damn explicit.

car_analogy 4y ago

You are conflating "unclear" with "broad".

scarmig 4y ago
Congress gives the EPA the authority to set "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction." That's pretty clearly a broad delegation of regulatory authority.

rayiner 4y ago

No, the key phrase is "magnitude and consequences." The whole point of the "major questions doctrine" is that routine scenarios can be delegated, but authority to address a sweeping nationwide issue cannot be justified on the basis of a delegation to address a limited set of scenarios. To use an analogy, nobody is saying that the DOJ needs authority to create drug diversion programs. But this is like the DOJ pointing to the drug laws to justify a sweeping effort to combat the obesity epidemic.

scarmig 4y ago
The analogy here would be Congress granting the DOJ the authority to create drug diversion programs, a new drug hitting the scene that requires a response not explicitly called out in the initial legislation (e.g. distribution of naxolone), and the Supreme Court then declaring that response illegal because giving out naxolone just seems like too big a deal to be decided without involving Congress.
- rayiner 4y ago
  No it isn’t. The Clean Air Act is all about requiring polluters to use control technology, and requiring new sources to use better and more expensive control technology than existing sources. That’s the program Congress designed. Restructuring the energy industry to address climate is a different solution to a different problem, related only by the commonality of emissions into air. It’s like using drug laws to regulate processed foods because both involve harm caused by ingesting things.