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Anthony Kennedy Adds the Fifth Vote in the Citizens United Against Gerrymandering Opinion

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

— In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine.  I’m glad. Even despite the immediate repercussions for EPA authority., Me, Jun. 25

Okay, well, the EPA/mercury-emissions opinion, in Michigan v. EPA, and the Arizona Independent Redistricting Commission opinion were released today rather than on Friday.  As expected, both were 5-4 opinions with Kennedy as the swing vote.

Also as expected—by me and pretty much everyone else—the EPA’s interpretation of a phrase in the Clean Air Act was stricken as beyond the reasonable meaning of that phrase within the context of the Clean Air Act.  This is a big, big win for power plants and the Koch brothers.

But as not necessarily expected, by me or (to my knowledge) many other people, was the result in the Arizona Redistricting Commission case.  Which is to say, Kennedy’s decision to join Ginsburg’s opinion interpreting the Constitution’s Elections Clause as referring not to the actual legislative body but to a state’s general authority—vis-à-vis the federal government’s—to determine such matters, in this case via a voter-led referendum in 2000 that established a bipartisan state commission for the purpose of redistricting congressional districts.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg said in a statement she read in the courtroom.  The full provision in the Constitution’s Article I, Section 4, Clause 1, states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg wrote.

What I find curious is the majority’s interpretation of “The Times, Places and Manner of holding Elections for Senators and Representatives” as referring to redistricting methods at all.  And theoretically, it’s interesting that Scalia, Thomas and Alito, after all the venom they spilled last week in their King v. Burwell dissents—words no longer have meaning, etc., etc.—think “Times’ means something other than “times”; “Places” means something other than “places”; and “Manner” means something other than, well, “manner”.  I haven’t read the Ginsburg opinion yet, and I don’t know whether it addresses this. And while Ginsburg wrote the opinion, Kennedy controlled the basis for it.

But in my opinion, the grounds that the majority settled on are broader and better than a decision limited to the issue of gerrymandering. Which, it seems to me, this isn’t.  I’m certainly no expert in election law, but off the top of my head the ground on which the opinion is based—that the Elections Clause as referring not to the actual legislative body but to a state’s general authority to determine such matters, including by voter-led referendum—then states (Think: Wisconsin; North Carolina; but not, of course, Texas) might reverse the uber-restrictive voter-ID laws enacted the moment that the Tea Party gained control over the state’s legislative and executive branches together.

Well, we’ll have to see what the experts say about that.  Sit tight.  But even if limited to voter referendums on creation of anti-gerrymandering commissions, this opinion is a very big deal.  I think.

Citizens united in Arizona in 2000 against extreme gerrymandering. Now citizens can unite in other states to do the same.

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UPDATE: Richard Hasen, a professor at UC-Irvine law school and a leading liberal election law expert (he blogs on election law at electionlawblog.org), just published an article on Slate on the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which he conjectures about the reasons for Kennedy’s surprising vote and notes that, as in King v. Burwell, Kennedy seems to have changed his mind after the argument in the case this spring.  Slate notes at the bottom of the article that he has a book forthcoming called Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.  Cool.

Added 6/29 at 3:42 p.m.

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SECOND UPDATE:  Hmm. Two terrific articles about the actual effect of the EPA decision on coal-powered power plants. One, by Michael Grunwald in Politico, discusses both the specifics of the ruling and the quickly progressing demise of the coal industry, which is rapidly being replaced by gas and solar and wind power. His article is titled “A great day for coal? Not exactly.” It’s subtitled “Why the Supreme Court’s strange EPA decision won’t matter as much as people think.”

The other, by Eric Holthaus in Slate, is called “Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over.

Since I’m one of the people referred to in Grunwald’s subtitle, I thought I should mention these articles.   This is just a  big win for coal-powered power plants, not a big, big win for them.  The Koch brothers are still pretty happy tonight, though.

Added 6/29 at 9:40 p.m.

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In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine. I’m glad. Even despite the immediate repercussions for EPA authority.

[T]oday’s victory may have been even more decisive than it looks at first glance.

It isn’t just that the Court ruled six-to-three in favor of the government’s position, with John Roberts and Anthony Kennedy joining the Court’s liberals in support of a single, non-splintered decision, though that’s important.

It’s also that Roberts’ opinion may have precluded any future efforts by a Republican president to use executive discretion to cancel the subsidies for the millions of people on the federal exchange. [Italics in original.] This option might have been left open if the ruling had been written differently.

A decisive win for Obamacare, Greg Sargent, Washington Post, today

Indeed.

The Court issued opinions in two of its seven remaining cases this morning, in this one, King v. Burwell, is in my opinion the lesser-significant of the two.  Texas Department of Housing and Community Affairs v. Inclusive Communities Project, in which the Court, ruling 5-4, upheld as both intended by the Fair Housing Act and within permissible constitutional bounds the right to invoke that Act to challenge government agency and private business actions that, while not overtly racially discriminatory, plainly have a discriminatory effect.  It is a tremendously important opinion, even beyond the housing issue.  And no slouch in the significance department is another 5-4 opinion issued this week, Kingsley v. Hendrickson, that began, finally, the process of limiting what has been the tacitly unfettered authority of prison guards to brutalize both pretrial detainees and post-conviction inmates—although the dissents in that opinion deserve their own post, and soon will get one.

But the far-reaching importance of the King opinion today, authored by Roberts, is in its choice to interpret the statute directly as providing for the subsidies irrespective of whether a state had designed and runs its own insurance exchange or instead defaults to the option by which the federal government created and runs the state’s exchange.  The government had argued both that that was the clear intent of the statute in providing for the default (the backup) option, and, alternatively, that under a Court-created doctrine known as “Chevron deference,” courts are required to give deference to the statutorily designated federal agency—here, HHS—in the agency’s reasonable interpretation of an ambiguous provision in the statute.

The Chevron-deference option would have enabled a later White House administration’s HHS to interpret the statutory language at issue—“an Exchange established by the State”—as the King plaintiffs claimed: Tax credits are available only in states in which the Exchange was set up and is run by the state, not an Exchange set up and run for the state by the federal government.

The Chevron-deference doctrine was created in a 1984 Supreme Court opinion, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., mainly for the purpose of allowing Reagan’s regulatory agency chiefs to orchestrate the industry capture of the respective regulatory agency charged with regulating the capturing industry.  Federal laws that create regulatory agencies provide that the agency itself will design regulations addressing specifics, in order to give effect to the broad design and mandates of the Act that establishes the agency.  The EPA was the original target of the Chevron doctrine, and is still the most common, I believe, but obviously the doctrine comes in handy in undermining regulations regulating the financial industry, the pharmaceutical industry, employee safety, and, well … you get the idea.

The doctrine’s stated premise is a clearly sensible one: that the very purpose of creating a regulatory agency is to have a permanent body of experts in the relevant fields employ their expertise to study the science, the technology, the methodology, and promulgate regulatory mandates and parameters that give effect to Congress’s purpose in enacting the statute and creating the regulatory agency.  But the extreme deference that the Chevron doctrine has appeared to accord to the agencies has, rather than served to effectuate congressional regulatory purposes in enacting the statutes that come within the regulatory jurisdiction of the relevant agency—the Clean Air Act vis-à-vis the EPA, for example—turned control of these agencies into political footballs.

Which was fine with the conservative justices, as long as the White House was in Republican hands.  But nearly seven years into the Obama administration, they’ve had enough, and have begun to make noises indicating a change of heart on Chevron.  They want to rein it in.  Two of them, joined by the four Democratic justices, took the first step toward that today, in King. And tomorrow, it is widely expected, in a case called Michigan v. Environmental Protection Agency, the five Republican justices will take a second, broader, and direct step, in an opinion that will strike down as beyond its authority under the Clean Air Act the current EPA’s interpretation of that statute as permitting it to regulate the release of mercury into the air by power plants.

And as a longstanding critic of the Chevron-deference doctrine, I’m thrilled with the Chevron implications of King.  As someone who’s not fond of the effects of mercury on the health of anyone or anything who breathes, though, I won’t welcome the substantive result in tomorrow’s opinion. But I hope, and think, that the issue of statutory regulation of power plants will become a somewhat potent issue in next year’s national elections.

What won’t be a national issue in next year’s elections, federal and state, are tax credits for subsidies for healthcare premiums under the ACA.  Which is precisely why Roberts and Kennedy decided that King must be decided as it was decided today.  Last March, after the argument in the case, I predicted exactly correctly what would happen, and why—and have never looked back, instead rolling my eyes at all the continued handwringing of liberal pundits so worried about the case’s outcome.

I pointed out back then that Roberts, for all his desire to fully, thoroughly, complete the circa 1980s Conservative Legal Movement’s takeover of American law, point by point by point, wants first and foremost, always—always—to provide every possible assist to Republican candidates for federal and state elective office.  Once it became clear, as it already had by the time King was argued at the Court, that a victory for the plaintiffs would spell electoral disaster for Republicans for federal and state office next year, Roberts’ vote, and the outcome of the case, was clear as well.

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

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