Supreme Court Republicans to ignore the text of another statute because it allows executive branch to issue regulations Republicans disagree with

Supreme Court Republicans are about to unilaterally re-write the Clean Air Act to prevent the EPA from regulating carbon emissions:

On Monday morning, the Supreme Court’s Republican-appointed justices deployed a series of made-up rules to override the Clean Air Act and hobble the Biden administration’s regulation of greenhouse gases. Their arguments, which dragged on for two hours, involved very big feelings but remarkably little law. The conservative bloc appears convinced that the federal government currently has little or no authority to regulate carbon emissions at coal-fired power plants. But this conviction is based on a subjective sense of what the Environmental Protection Agency should be able to do—not what Congress authorized it to do. So while the liberal justices asked about the words of the statute, their conservative colleagues searched for some reason why those words could not possibly mean what they say.

[…]

Here’s the upshot of that labyrinthine history: There is no current federal regulation limiting carbon emissions from existing coal-fired power plants. So, you might think, there is nothing for the Supreme Court to do—no controversy to resolve, no regulation to evaluate. There is only the prospect of a future regulation from President Joe Biden’s EPA. And the Supreme Court is not allowed to issue advisory opinions about hypothetical conflicts that may arise in the future.

But it seems the conservative justices are kept awake at night by the knowledge that someday, somehow, the government might attempt to regulate power plant emissions. There’s no other reason the Supreme Court would take up this case now, rather than wait for the Biden administration to give it an actual rule to invalidate.

West Virginia v. EPA is not a live legal dispute; it is a preemptive strike.

[…]

The coal industry, supported by Republican attorneys general, wants SCOTUS to adopt this crabbed interpretation of the Clean Air Act. Doing so would handcuff the EPA, preventing it from setting ambitious standards achievable through creative programs. There is a problem, though: As Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan explained over and over again on Wednesday, this limitation does not exist in the statute. The Clean Air Act speaks of a “system” of reductions, not a technological fix. Coal lawyers don’t just want to reinterpret the law; they want to rewrite it.

Most, if not all, of the conservative justices appear happy to oblige. During oral arguments, they deployed four fabricated “doctrines” or “canons” to replace the Clean Air Act’s text with a far narrower mandate. First, there’s the “clear statement rule”—the notion that, as Justice Brett Kavanaugh put it, “Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance.” What qualifies as “vast economic and political significance”? No one knows. Second, there’s the “major questions doctrine”—the principle that only Congress, not a federal agency like the EPA, can resolve “major policy questions.” Third, there’s the “nondelegation doctrine,” the final boss of anti-textualism, which holds that Congress acts unconstitutionally when it delegates too much power to an agency. Finally, just for good measure, there’s the “federalism canon,” which bars agencies from issuing regulations that “upend” the “federal-state balance of power.”

Each of these rules was invented by conservative lawyers for the purpose of striking down regulations, even when they are authorized by Congress. Each of them is, at best, tenuously connected to the Constitution, resting on a subjective sense of the proper “separation of powers” (and the assumption that unelected judges get to enforce those judgments). On Monday, they all melted together into an unholy slurry. Chief Justice John Roberts suggested that a regulation violates this muck of manufactured doctrines if a judge is “surprised” when they read it. It was surprising when the Food and Drug Administration regulated cigarettes. It was surprising when the Centers for Disease Control and Prevention regulated evictions. If it feels like an agency has gone beyond its mandate, Roberts asked, shouldn’t the courts assume it broke the law

As Paul said, there is no content to any of these ad hoc “doctrines” and “canons” except “statutes written in general terms to deal with a wide variety of issues can only be enforced by Republican administrations.” That’s it. But that’s enough to hobble the EPA, and given the consummate bad faith with which Republican judges approach statutory interpretation there’s not any effective way of dealing with the problem.