The Supreme Court's "deal with the devil"
A recent decision gutting the Clean Water Act shows how business interests trump principle for the court's right-wing majority.
@swanksalot If you read the opinion, the Court didn't gut the Clean Water Act, and it wasn't just the right wing that came to its conclusion.
Instead, the Court *reinforced* the CWA, insisting that it be followed as passed, and even liberals on the Court pointed out that the EPA was claiming power that it didn't have.
It was also a case about private ownership, not about business.
There's so much wrong with that narrative, but you can read the opinion for yourself so you don't have to trust such outlets.
I'm quoting directly from the opinion here. There is no room for disagreement about the words on the page.
For example, the members associated with the left-wing of the Court agreed that the EPA was acting in violation of the CWA.
"ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment, in which SOTOMAYOR and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined."
@volkris @swanksalot The result as applied to the parties in this case was not controversial. But the majority’s reasoning and the new rule it announced is absolutely atextual and guts the Clean Water Act. The majority essentially rewrote the statute AND overruled one of its own prior decisions, without legitimate basis.
Where, specifically, do you believe they went wrong?
@volkris The CWA, by its terms, applies to wetlands “adjacent to” navigable waters. The majority rewrites “adjacent” to “adjoining” or “connected” because of the majority’s policy preferences to protect private property over the environment (of course, at odds with the fundamental purpose of the CWA to protect the environment). Alito also just ignores that Justice Kennedy’s opinion in Rapanos was the controlling opinion in the 4-1-4 split. So, it’s disrespectful on top of being wrong.
But that's not what the majority says, so it sounds like you're setting up a strawman.
What of the majority's argument that Congress wrote §1344(g)(1) so as to clearly reflect "that certain adjacent wetlands are part of waters of the United States."?
@volkris The majority’s rule limits “waters of the United States” in re: wetlands to wetlands with a direct surface connection so as to be effectively indistinguishable from navigable waters. That effectively reads “adjacent wetlands” out of the statute.
But that is not what the ruling said.
The ruling did not read "adjacent wetlands" out of the statute, but rather as dissenting opinions emphasized, it found that "adjacent" had a less binding meaning.
So no, that argument doesn't hold any water
@volkris You’re just repeating the majority opinion’s ipse dixit. How doesn’t the majority’s new test read out “adjacent,” when it requires wetlands rather to be “indistinguishable” due to a contiguous surface connection to other waters?
Well that's what I'm trying to ask you! 🙂
I'm trying to ask you where you think the majority ruling went wrong, so why do you think this is wrong?
@volkris At this point, we’re just talking in circles. I point out that the majority’s rule is incompatible with the text, then you say the majority disagrees. So….
But that's exactly my question, HOW is it incompatible?
I was looking for specifics as to your disagreement, and just saying it's incompatible doesn't support your argument.
How specifically is it incompatible? That's what I'm asking about.
@volkris The word “adjacent,” means “next to,” not “adjoining” or “connected to so as to be indistinguishable from.”
I know that's the position that Kagan took, but I found it bizarre and factually lacking since she simply insisted that a common use of a word doesn't exist.
In my everyday experience adjacent has meant adjoining, and heck, adjoining is one of the first definitions that come up if you search for a definition for the word.
Kagan's opinion not only insists on an alternative definition being the right one, but it goes so far as to say this usage doesn't exist, despite the common experience saying otherwise.
So no, that argument doesn't really hold water.
@volkris Congress used the word “adjacent,” not “adjoining.” It is a basic canon of statutory interpretation to give different words different meanings, just as it is to give the same words the same meanings. As Merriam-Webster-Webster explains the difference: “ADJACENT may or may not imply contact but always implies absence of anything of the same kind in between” and “ADJOINING definitely implies meeting and touching at some point or line.”
Yes but since a common usage of "adjacent" is exactly "adjoining" that is a distinction without a clear difference.
And that is even if somehow Kagan has managed to go through life ignorant of this definition. I find that hard to believe, but okay.
At the very least that potential equivalence of adjacent and adjoining means that the Court's reading is reasonable. It just applied a common interpretation of the term.
The rest strikes me as jumping through some pretty high hoops to expand executive branch power enormously without clear congressional approval.
Congress is of course free to clarify that it does want the president to have this huge amount of power, but at this point it's plenty reasonable to conclude that this power was not granted.
@volkris Again, that violates a fundamental canon of statutory interpretation. That “adjacent” CAN include “adjoining” does not mean one can decide to use “adjoining” instead of “adjacent.” Congress’ intent is manifest in the words it chose. And, the fact that Congress defined “navigable waters” by such a broad reference to “waters of the United States” actually does support Congress intent to grant the EPA broad regulatory authority notwithstanding traditional private property rights.
I'd say the argument is not that they are using adjoining instead of adjacent but rather that since the two words overlap in meaning, you can get to the same effect whichever one you choose to use.
It's not instead of. It's simply both. Congress could have used either of the synonyms, to the same effect, and it's really a stretch to insist on such a broad expansion of executive power based on what seems to have been mere stylistic word choice.
But it sounds like at least we agree that Kagan's dissent really missed the mark, not allowing for even the possibility of vocabulary she was apparently not familiar with.
@volkris No. Congress made the choice. At this point, you’re just willfully ignorant or deliberately trolling.
@volkris disagree with your analysis. I urge you to read the opinion before regurgitating falsehoods