Guest essay by Eric Worrall
Greens are worried Judge Brett Kavanaugh on the Supreme Court will impede their efforts to stretch Congressional mandates beyond their original intent.
What Brett Kavanaugh on Supreme Court Could Mean for Climate Regulations
Trump’s second Supreme Court nominee has a history of opposing regulations Congress didn’t explicitly authorize. That could be a problem for greenhouse gas policies.
BY MARIANNE LAVELLE
OCT 6, 2018In his dozen years on the federal appeals court that hears the most disputes over government regulatory power, Judge Brett Kavanaugh compiled an extensive record of skepticism toward the government’s powers to act on climate change.
In particular, while Kavanaugh has repeatedly voiced the belief that global warming is a serious problem, he challenged the argument that Congress has given the Environmental Protection Agency authority to do something about it.
…
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan,” President Barack Obama’s signature climate initiative.
…
Kavanaugh articulated his narrow reading of the law during oral arguments in September 2016 on the Clean Power Plan. Kavanaugh said the Clean Air Act was “a thin statute” to support the rule, likening the program for reining in carbon emissions from electric power plants to President George W. Bush’s post-9/11 move to detain a suspected enemy combatant without due process—an effort that the Supreme Court ruled unconstitutional.
“War is not a blank check,” Kavanaugh said. “Global warming is not a blank check, either, for the president.”
…
What a disaster for the green movement. How will activists regulators ever achieve anything, if they have to keep asking Congress to sanction their efforts?
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Of course, Justice Kavanaugh almost certainly will recuse himself from ruling on the Clean Power Plan. He certainly can’t hear any appeal claiming that the earlier decision in which he participated was wrong.
It looks like you are correct.
Lower court judges are bound by redusal rules. But for the Supreme Court, they are at the discretion of the individual justice.
For example Ruth Bader Ginsburg made public her anti-Trump opinions before the election. When the Trump immigration ban came before the Court, she did not recuse herself. A lower court judge would had to recuse in that situation. But the vast amjority of judges have the common sense to keep their personal opinions private.
Kagan is another example. She worked on ACA and cheered when it passed, but didn’t recuse herself when it made to the Supreme Court.
For the collectivist (rule from the bench) justices, anything goes.
Conservative justices usually adhere to more ethical standards.
Reg writes: “[Kagan] worked on ACA”.
How did she work on it? What did she actually do that required her to recuse herself? As Obama’s Solicitor General, she presented the government’s position on many cases to the Supreme Court and other courts, but she left that position soon after the ACA passed and before any lawsuits reached the attention of her office.
She asked her deputy serve on a committee to plan for legal challenges to the ACA. The legal advice provided by that committee remained confidential as attorney/client work product. Kagan asserted at her hearings that her opinion had not been sought.
https://cei.org/blog/justice-kagan-should-recuse-herself-obamacare-case
There is plenty of room for disagreement about what warrants and doesn’t warrant recusal, there is no justice in complaining about failures to recuse when it hurts causes you favor and demanding recusal when it helps causes you favor. It is less disruptive for an AG to recuse himself and be replaced by the dAG, than it is for the Supreme Court to fail to rule 4-4. Some recent recusals:
http://www.scotusblog.com/2017/11/kagan-recuses-immigrant-detention-case/
@ur momisugly Frank
1. Let’s start by laying forth the straightforward case that Kagan had a legal duty to recuse herself. (I briefly outline that case here and invite readers to follow these links for a more detailed discussion and documentation.)
a. Under 28 U.S.C. § 455(b)(3), a justice has a legal duty to recuse herself from a proceeding in which the justice “has served in government employment and in such capacity participated as counsel [or] adviser … concerning the proceeding.” Any such “participat[ion]” would appear to be disqualifying. As with financial interests that trigger disqualification, the statute does not set forth a minimal threshold.
b. In her capacity as solicitor general, Elena Kagan was personally involved, even if only to a limited degree, in advising how to defend against challenges to Obamacare. Among other things:
– In January 2010, Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.”
– In March 2010, Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.”
– Katyal and Kagan then consulted on whether he or she should attend a White House meeting “to help us prepare for litigation” (Perrelli’s phrase) on what Katyal referred to as “litigation of singular importance.”
Therefore, Kagan had a duty to recuse under section 455(b)(3).
(Kagan, it seems, minimized her participation in the Obamacare litigation in order to enhance her viability as a Supreme Court candidate. The Obama White House, after all, would have been much less inclined to nominate her if the public record—rather than documents later obtained through FOIA requests—had revealed her duty to recuse.)
****
And you ignored my other point that she cheered the passage of the bill.
Joel: Justice Ginsburg never should have publicly expressed her opinion about Trump’s fitness to be president. However, the case about the immigration ban had nothing to do with Trump’s fitness to be president. The Supreme Court was asked to decide whether a president who had recently made many public remarks proving he was prejudiced against anti-Muslims (all the justices agreed upon this conclusion) was fit to regulate immigration for national security reasons in a manner that would have a disparate impact on immigration of Muslims (another fact all justices agreed upon). A 5-4 majority agreed nation security was more important than having an unprejudiced man in charge of making these regulations (despite the fact that Congress instructed the executive branch to create and enforce immigration regulations without religious prejudice).
If the president had appointed unprejudiced subordinates to create regulations that would meet his security objectives, this conflict could have been avoided.
Of course those who have judged the president to be prejudiced are themselves prejudiced against anyone who disagrees with them. To the point that they are willing to lie about what the president said and take his positions so badly out of context as to make them unrecognizable.
What is hell is “prejudiced”?
How is it possible to define “prejudiced” without the whole Dem party being “prejudiced” against whites, against men, against white men?
How is the whole Dem party not unfit to vote to anything relevant to white men?
Supreme Court was asked to decide whether a president who had recently made many public remarks proving he was prejudiced against anti-Muslims
Trump is prejudiced against those who are opposed to Muslims?????
Uh, no, there are no “judges” on SCOTUS, only justices. They are not held to any recusal standard, unless a justice feels compelled to recuse himself out of the goodness of his heart.
No wonder Steyer and Sorros are freaking out . They just lost the highest court in the land for decades .
Hard to go full on globalist when the Constitution is going to be upheld .
I hope he has a full time security detail because Democrats are now so desperate another Seth Rich “robbery ”
will be their go to response .
Most of the oldest remaining judges are left to far left.
Even if Trump is only able to replace them with moderates instead of hard core leftists, it’s still a win for the rule of law.
Suck it libs! Finally a little sanity. 🙂
Nope, not tired of winning yet.
My cheeks are sore from grinning so much.
Many happy days lately!!!
Under the Constitution, the Federal EPA shouldn’t even exist, but rather each state should establish and enforce its own environmental standards and laws.
I’d love to see this happen.
Total federal regulation compliance costs are $2 TRILLION PER YEAR, which consumers end up paying for in the form of higher prices.
I don’t think the federal EPA will be dissolved anytime soon, but I’m know Trump will continue to dramatically cut regulations, and hopefully SCOTUS will make some landmark decisions curtailing agencies from over regulating beyond their mandated powers.
What I experienced with implementation of environmental laws was moving from the recognition of private property to incremental excuses to regulate it. The Louisiana gopher frog case is near the ultimate in absurdity. If the frog comes back across the Pearl River from Mississippi it needs that land. Not completely crazy speculation suggests it could be there, impossible to confirm from computers in DC. I base that on the previous serious consideration to put oysters on the endangered list, minimal field work from numerous states easily proving it idiotic. However, field work might get into a 4th amendment illegal search. Covering the land with concrete or ethanol farms ain’t smart, though.
On most coasts sea level was a reasonable separation except in places like Louisiana where the marsh is privately owned. Inland it gets quantitatively complicated, because everything has to be “wet” land to grow anything, except maybe with water from the atmosphere. This is one reason why “land” has a terra firma, but can have a different legal, definition. When you lose your “land” to subsidence, storms, or sea level rise the state acquires it in most cases, taken without due process or compensation.
Therefore the argument that the EPA is unconstitutional seems reasonable, the 9th and 10th amendment applying. State lines get crossed with water and air, but there is currently lots of duplication with at least some state’s equivalent agency and too much paperwork, just like health care.
If this POTUS can get through at least one more SCOTUS pick it will make it very difficult for the leftist nut balls to pack the court in the future. And if you don’t think they would attempt to do such a thing when they get back in power then you’ve not been paying attention. Ginsburg is a walking skeleton obviously knocking on heavens door, Breyer is up there in age also. There is even talk that Sotomayor’s state of health is not so good.
Now that we’ve seen how far they will go to “resist” and there almost certainly won’t be any significant punishment for those that carried out that scam, one can expect the “resistance” to go even further should Trump get another pick.
I see where criminal referrals are in the works for those scammers. And the evidence is compelling. For once, justice just might be served!
I’ll believe the Eunuchs will really do something about it when I see it. How many people have gone to jail for the Hillary e-mails? How many have gone to jail for using their law enforcement and intelligence positions in the Federal government to first try to influenced the outcome of an domestic election and then, when that failed, to pull off a “silent coup”?
If this POTUS can get through at least one more SCOTUS pick it will make it very difficult for the leftist nut balls to pack the court in the future.
There’s been talk that the Dems will try to add Justices to the court (much like FDR wanted to do*) should they take control of the White House and Congress.
* after leftist/progressive FDR’s plan to pack the court failed, when he finally got the chance to pick a supreme court justice he chose a member of the klu klux klan. Says it all really.
Going back m an y years Michall Gobochov tried to reform Communism. He failed an d we all know what happened. But he said afterwards that every small reform was blocked by the Russian burocrats.
So how many burocrats do we have in the USA, who will just do what they consider is best for the community ?
MJE
I don’t know, but there are lots of bureaucrats!
I’m concerned if he really thinks global warming is a serious problem.
Oh diddums – someone who might pull a Warmist up and ask them to explain the GHGE.
Somehow, I don’t know how or why exactly, I suspect the usual method employed (the deliverance of a torrent of Ad-Homs) won’t get you far with A Judge.
Yes it will, but not anyplace you’d want or like to be……
That’ll put a damper on the left’s global warming and abortion industries Worldwide.
Alarmism is about baseless accusations and presumption of guilt. Justice Kavanaugh has now an insight into it.
Well, he’s an idiot for Believing the CAGW nonsense, but at least he respects the Constitution. So I look at it as a win, just barely.
I find his disregard for the 4th Amendment troubling.
With the US degenerating into a Wild West scenario, any adherence to the rule of law should be welcomed by those still sane.
And the winning just keep going! Now, who to replace Ginsburg? This is going to be fun!
If the “Greens” are worried, I’m not.
I’m worried whenever the “Greens” aren’t
I think Trump’s next Supreme Court nominee will be a woman.
The Democrats will attack her just as vigorously as they did Kavanaugh, if they can find or make up the right angle. They are no respecter of gender when it comes to politics and power.
Let’s see, that makes over a dozen false accusations against President Trump, and three false accusations against Justice Kavanaugh, that the Dirty Democrats have ginned up, and not one of the accusations has any facts to back up the charges. Typical Democrat Dirty Tricks. Dragging a person’s reputation through the mud is standard operating procedure for these despicable, thoroughly deluded people.
The Radical Democrats are a poison to our freedoms. Vote Republican if you don’t want these maniacs running your life.
Tom,
Meet Dianne Feinstein’s worst nightmare in all her 85 years:
Forty-six year-old Seventh Circuit Judge Amy Coney Barrett, of Louisiana and Indiana (Notre Dame Law School), devout Catholic, distinguished legal scholar and mother of seven (two adopted, one special needs).
You know it’s all political/lacking in any semblance of reality, when the creepy porn lawyer is involved.
The rule of law expects evidence, aka science.
The point of this second experiment is to demonstrate that a surface with multiple outgoing heat transfer pathways cannot radiate as a BB. Just as reflected, transmitted, absorbed incoming radiation must equal 1.0 the outgoing radiative and non-radiative heat transfer processes must equal 1.0. Radiation does not function independently from the non-radiative processes.
The immersion heater is feeding 1,180 W of power into the insulated pot of water which is boiling at an equilibrium temperature of 200 °F. (6,300 feet) The only significant pathway for energy out of this system is through the water’s surface.
Any surface at 200 °F radiates at 1,021 W/m^2. This is 2.38% of the 42,800 W/m^2 power input to the system. That means 97.6% of the power input is carried away by non-radiative heat transfer processes, i.e. conduction, convection and evaporation.
Likewise, the significant non-radiative heat transfer processes of the atmospheric molecules render the 396 W/m^2 LWIR radiation upwelling from the surface impossible.
No 396 W/m^2 upwelling BB LWIR means there is
No energy to power the 333 W/m^2 GHG out-of-nowhere perpetual energy loop,
No energy for the CO2/GHGs to “trap” or absorb and re-radiate “warming” the atmosphere/surface and
No man-caused climate change.
This second experiment validates the findings of the modest experiment.
Modest experiment:
https://www.linkedin.com/feed/update/urn:li:activity:6394226874976919552
Annotated TFK_bams09
https://www.linkedin.com/feed/update/urn:li:activity:6447825132869218304
The Supreme Court is being restocked with non drooler’s who’s left wing staff actually call the shots .
At least one or two more changes during Trump’s term would be nice .
The character assassination of Kavanagh by Democrats and the sleaze bag lawyers just created a monster back lash .
Where is bug eyed Spartacus when you need him ?
https://www.youtube.com/watch?v=jw0JsGSnSFE
There is proof that Brett Kavanugh’s carbon footprint, specially his methane emission as a 16 year old, are well documented.
Oh dear… 🙂
Not just the rule of law, but any notion that an accusation (of a person, a “toxin”, a product, a technology) isn’t proof, goes against the nihilism of the left, “center” or “resistance”.
The idea of asking for evidence even when the accused has a bad reputation.
Reading this:
https://www.history.com/topics/cold-war/joseph-mccarthy
I don’t see anything in the method or result that the Dems cannot love.
Many people lost their job? They weren’t “entitled” to one.
While his methods were questionable (to say the least) he wasn’t wrong. There was (and still is) a communist/socialist element embedded in Hollywood and the government (today it’s called the Deep State) that is hellbent on subverting (“resisting”) our great republic.
“He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan,”
So you have a judge who is a stickler for precision in law. Since when has it been a bad thing that lax laws are prevented from passing.
If Kavanaugh employs logic and rationality and along the way scuttles leftist activist court cases then not only is the USA winning.
All of us are winning.
Thank you President Trump.
“Greens are worried Judge Brett Kavanaugh on the Supreme Court will impede their efforts to stretch Congressional mandates beyond their original intent.” – – – I BLOODY WELL HOPE SO!