RIP Scalia

[Bricker]

@GIGObuster

IMHO no also to that, or to be more pedantic you are basing this on on argument from ignorance. The decision to stay the rules was given with no justification as to why.

A stay isn’t a decision on the merits. They don’t need to give a reason.

However, in this case, the reason was likely not related to,science at all, but to,the EPA’s failure to comply with the Clean Air Act’s requirement for a public comment period before the Administrator imposes a rule under Section 126. See 42 U.S.C. § 7607(d)(1)(N), (d)(3).

[Merneith]

@Doyle

Wrong. I can’t remember the last time I voted Republican.

I didn’t say voting Republican. I said supporting Republicans. Part of supporting Republicans is clutching your pearls about how mean and shrill Democrats are for pointing out that Scalia was a lousy human being who made the world a worse place by very his existance, whether it’s putting GWB on the throne, interperting the constitution in order to support the use of torture, allowing Hobby Lobby to deny birth control to its employees, allowing unfettered money influence on campaign fincance, insisting that being anti-homosexuality was a respectable point of view, or holding up the recent attempts to address global warming.

No, I don’t give a shit about his legal rationalizations for why any of that was acceptable. Anyone who spends five minutes on this board can see first hand that it’s possible to rationalize anything, whether you’re starting from the Bible, or the Constitution or David Lynch movies.

Some things are harmful and some things are not harmful and Antonin Scalia was on the wrong side of every harmful decision of the last thirty years. That he used his influence and his education to find fig leaves for himself does not obscure his malevolence.

[Bricker]

@iiandyiiii

That’s fine, but it just seems like an interpretation, and just as reasonable is an interpretation that would include torture-for-info (which, since it’s torture, is inherently punishing) within the meaning and intention of “punishment” in the 8th.

The Court has decided dozens, if not hundreds, of cases involving the Eighth Amendment. It has never, before or during Scalia’s membership therein, decided that “punishment,” means anything else except criminal punishment.

These cases stretch all the way back to the beginning of the country and into the present day.

For this reason, I don’t agree that it’s “just an interpretation.” It’s the entire panoply of Eighth Amendment case law.

[Steophan]

Regarding torture being a violation of the 5th amendment, wouldn’t that only be the case where the torturer was trying to get information about crimes the victim supposedly committed, not those by a third party?

[GIGObuster]

@Bricker

A stay isn’t a decision on the merits. They don’t need to give a reason.

However, in this case, the reason was likely not related to,science at all, but to,the EPA’s failure to comply with the Clean Air Act’s requirement for a public comment period before the Administrator imposes a rule under Section 126. See 42 U.S.C. § 7607(d)(1)(N), (d)(3).

Knowing how ALEC and very powerful interests are behind that “public comment period” tells me that the public is not really consulted in a decision resulting from a request coming from states that are (not coincidentally) dominated by Republicans.

http://thinkprogress.org/climate/2014/09/11/3566339/governors-letter-epa-carbon/

That was the gist of a letter the group of governors sent to the White House on Wednesday, which argues that the Environmental Protection Agency’s proposed rule to cut down on the carbon dioxide from the nation’s power plants goes beyond the scope of power given to it in the Clean Air Act.

Five of the states represented by those governors — Alabama, Indiana, Oklahoma, South Carolina, and Wyoming — are also part of a lawsuit filed back in August against the agency, which seeks to overturn the new power plant rules on similar grounds. Nine of the governors have gone on record denying the scientific validity of human-caused global warming, and the other six have striven to avoid the issue while doing little to promote green energy in their states — despite polling that shows that everyday residents of most of their states are on board with placing federal limits on greenhouse gas emissions.

[Bricker]

@Trinopus

If this is the one I alluded to, it was Scalia, but just in a public speech somewhere, not in an actual ruling. He said that torturing suspects to gain information from them would not be a violation of the 8th, because that’s part of investigating a crime, not part of punishing one, and the 8th only forbids cruel and unusual punishments.

Most jurists hold that the 8th prohibits cruel and unusual treatment of individuals, by the government, in all circumstances. Not only that you may not be drawn and quartered as a penalty for murder, but that the police can’t burn your face with lit cigarettes when asking where you were at two o’clock on last Tuesday.

Most jurists don’t hold any such belief about the Eighth Amendment. Where did you get that idea? Can you cite a couple of cases in which jurists have expressed this view you impute to them?

[Doyle]

@Merneith

I didn’t say voting Republican. I said supporting Republicans. Part of supporting Republicans is clutching your pearls about how mean and shrill Democrats are for pointing out that Scalia was a lousy human being who made the world a worse place by very his existance, whether it’s putting GWB on the throne, interperting the constitution in order to support the use of torture, allowing Hobby Lobby to deny birth control to its employees, allowing unfettered money influence on campaign fincance, insisting that being anti-homosexuality was a respectable point of view, or holding up the recent attempts to address global warming.

No, I don’t give a shit about his legal rationalizations for why any of that was acceptable. Anyone who spends five minutes on this board can see first hand that it’s possible to rationalize anything, whether you’re starting from the Bible, or the Constitution or David Lynch movies.

Some things are harmful and some things are not harmful and Antonin Scalia was on the wrong side of every harmful decision of the last thirty years. That he used his influence and his education to find fig leaves for himself does not obscure his malevolence.

Nor do I support Republicans. I understand your sentiments, but I disagree with how it is expressed here.

[Bricker]

@GIGObuster

Knowing how ALEC and very powerful interests are behind that “public comment period” tells me that the public is not really consulted in a decision resulting from a request coming from states that are (not coincidentally) dominated by Republicans.

But the Clean Air Act still requires the comment period, right?

[iiandyiiii]

@Bricker

The Court has decided dozens, if not hundreds, of cases involving the Eighth Amendment. It has never, before or during Scalia’s membership therein, decided that “punishment,” means anything else except criminal punishment.

These cases stretch all the way back to the beginning of the country and into the present day.

For this reason, I don’t agree that it’s “just an interpretation.” It’s the entire panoply of Eighth Amendment case law.

From my understanding, at least, in only a very small percentage of these cases was the meaning of the word “punishment” in the 8th amendment any part of the issue. To me it’s just as reasonable to reinterpret (if that’s what it is) that word in the amendment as the many, many other reinterpretations of the Constitution for issues like segregation and many more.

[GIGObuster]

@Bricker

But the Clean Air Act still requires the comment period, right?

The point was that the Republicans are not really dealing with the public nor their comments.

In any case the bulk of the complaints coming from the governors is not based on a comment period.

The substantive content of the governors’ complaint is twofold: “The unambiguous language of the [Clean Air Act] expressly prohibits EPA from using Section 111(d) to regulate power plants because EPA already regulates these sources under another section of the CAA,” the letter said. “Moreover, even if the Agency did have legal authority to regulate power plants under 111(d), it overstepped this hypothetical authority when it acted to coerce states to adopt compliance measures that do not reduce emissions at the entities EPA has set out to regulate. Under federal law, EPA has the authority to regulate emissions from specific sources, but that authority does not extend outside the physical boundaries of such sources (i.e., ‘outside the fence’).”

Section 111(d) is the specific part of the Clean Air Act (CAA) on which EPA based its power to regulate carbon emissions from existing power plants — and the governors and other critics assert that, according to its language, sources of emissions (like power plants) can’t be regulated under both 111(d) and another part of the CAA at the same time. And existing power plants are already regulated under Section 112 of the CAA for pollutants like mercury. This is effectively the same argument made by the twelve states suing EPA, as well as by a parallel lawsuit that’s being pursued by nine of those same states in conjunction with the coal company Murray Energy.

As Ryan Cooper recently pointed out at The Week, there are two big problems with their argument. First, 111(d) was the site of a relatively unusual screw up in American legislative history; the Senate and the House wrote two different versions of 111(d), and the differences were never reconciled in conference the way they’re supposed to be in legislative procedure. The Senate version grants EPA broad regulatory authority, while the House version has the tighter language the governors and the lawsuits highlight.

But both versions were written into the country’s “Statutes At Large,” which has final authority. According to Supreme Court precedent, federal agencies are to give deference when interpreting ambiguous statutes — and there’s literally nothing more ambiguous than two different versions of the same law.

The deeper problem is that even if the House version holds sway, it arguably doesn’t say what the governors claim. The language refers to “standards of performance for any existing source for any air pollutant,” which it says can be issued as long as criteria have not been issued under another section of the CAA. By the critics’ logic, this means that if a power plant is regulated under Section 112 for one particular pollutant like mercury, then it can’t be regulated under 111(d) for mercury or for any other pollutant. Which, as Cooper notes, is blatantly illogical. Section 112 laid out a specific set of pollutants covered by the CAA, while 111(d) was a stopgap meant to give EPA power to regulate any other pollutant Section 112 hadn’t caught. As both EPA and the Supreme Court have made clear, “pollutants Section 112 didn’t catch” includes carbon dioxide. The language in the House version prevents dual regulation of pollutants from a source under two different sections — not dual regulation of a source period, regardless of pollutant.

David Doniger, the Climate and Clean Air Program Director at the Natural Resources Defense Council (NRDC), and NRDC senior attorney Benjamin Longstreth also wrote that the CAA’s specific language here directs EPA to use the “best system of emission reduction.” Given the economic importance of flexibility, that language “plainly points toward a broad approach to cutting emissions. According to the American Heritage College Dictionary, a “system” is a “group of interacting, interrelated, or interdependent elements forming a complex whole.” A “system” of emissions reduction for the power sector can certainly encompass all the techniques available at reasonable cost for reducing carbon pollution at power plants, not just end-of-pipe controls.”

They also noted that EPA has successfully used the “outside the fence” approach in the past, both to regulate nitrogen oxide emissions in 1995 and to cut mercury emissions in 2005.

[Bricker]

@iiandyiiii

From my understanding, at least, in only a very small percentage of these cases was the meaning of the word “punishment” in the 8th amendment any part of the issue. To me it’s just as reasonable to reinterpret (if that’s what it is) that word in the amendment as the many, many other reinterpretations of the Constitution for issues like segregation and many more.

Why? Why not leave the Eighth Amendment alone and use other constitutional protections? What’s so compelling about redefining a couple of centuries of case law on meaning?

And even if I agree that your view is reasonable, would you say that mine is unreasonable? In other words, let’s agree that your view is a perfectly reasonable one: expanding “punishment” in the Eighth Amendment to cover investigative torture is a reasonable interpretation.

Is it the only one? Is someone who takes the opposite position evil?

[Bricker]

@GIGObuster

The point was that the Republicans are not really dealing with the public nor their comments.

In any case the bulk of the complaints coming from the governors is not based on a comment period.

So what? Can’t the court, sua sponte, rest its decision on a fact that wasn’t part of the “bulk” of complaints? Again, this wasn’t a decision on the merits. What, specifically, excludes the lack of comments period as a rationale for the stay?

[iiandyiiii]

@Bricker

Why? Why not leave the Eighth Amendment alone and use other constitutional protections? What’s so compelling about redefining a couple of centuries of case law on meaning?

And even if I agree that your view is reasonable, would you say that mine is unreasonable? In other words, let’s agree that your view is a perfectly reasonable one: expanding “punishment” in the Eighth Amendment to cover investigative torture is a reasonable interpretation.

Is it the only one? Is someone who takes the opposite position evil?

The other view is probably reasonable, depending on the circumstances. I don’t think it’s reasonable or factual to say that one is a literal reading and any others are interpretation – all such analyses require interpretation, in my view, since we can’t read the minds of the writers, and the same phrases and words in English can often mean different things.

[iiandyiiii]

As far as the moral dimension of Scalia’s position on torture, I’m not sure. I believe the “strict Constitutionalism” style of interpretation advocated by Scalia and others has merit, since it (on the face of it, at least) attempts to evaluate law without any bias… but that doesn’t mean that other interpretations might not be morally superior in some cases.

For example – if, in some absurd hypothetical, a Constitutional clause is written in a way that seems to mandate slavery and torture for all people of a certain race, but there is some method of interpreting the clause such that it does not require this, then a hypothetical judge would be bound by human decency IMO to interpret it in a way against mandating slavery and torture. This is how the SC justices should have voted in the Dred Scott case, in my view – finding some interpretation (I think the due process and life/liberty clauses would have made this easy) to outlaw slavery is required by human decency, even if this may not be a “strict Constitutionalist” interpretation. But this doesn’t apply for everything, since the moral dimensions of a particular case are rarely anything close to as clear.

I’m not sure about the torture question in particular, but I’m inclined to answer that it would be evil to not find some way to interpret the Constitution in a way that would outlaw torture – and this doesn’t seem like it would be particularly difficult to do. I’m not certain about this, just inclined to feel this way.

[Count_Blucher]

Have they announced yet where he is going to be buried?

[lance_strongarm]

@Merneith

Some things are harmful and some things are not harmful

A judge’s job is not to decide what is harmful and what is not harmful. You don’t want judges doing that. A judge’s job is to assure that those who do decide what is harmful and what is not are on the right side of the law and the Constitution. You do want that.

You may disagree with Scalia, but that doesn’t make him evil. The evil ones are the ones who won the case you don’t like, not the judges who decide it.

[Baal_Houtham]

@Bricker

Why? Why not leave the Eighth Amendment alone and use other constitutional protections? What’s so compelling about redefining a couple of centuries of case law on meaning?

And even if I agree that your view is reasonable, would you say that mine is unreasonable? In other words, let’s agree that your view is a perfectly reasonable one: expanding “punishment” in the Eighth Amendment to cover investigative torture is a reasonable interpretation.

Is it the only one? Is someone who takes the opposite position evil?

Yep. Mr. Bricker that is evil you’re serving there. Torture, like slavery, is close to being unmitigated evil. If there’s a chance to shut it down, a person should take that opportunity. To say there might be a more legally appropriate way to shut it down, that could happen maybe in the next 20 or 50 years, that is again evil.

[lance_strongarm]

@Baal_Houtham

Yep. Mr. Bricker that is evil you’re serving there. Torture, like slavery, is close to being unmitigated evil. If there’s a chance to shut it down, a person should take that opportunity. To say there might be a more legally appropriate way to shut it down, that could happen maybe in the next 20 or 50 years, that is again evil.

So does that apply to you too? You could go out and do more to shut down evil, couldn’t you? Why constrain yourself to what is legal, since you’re asking judges not to constrain themselves to what is legal either? The ends justify the means, so go out there and knock some heads!

[Baal_Houtham]

@lance_strongarm

So does that apply to you too? You could go out and do more to shut down evil, couldn’t you? Why constrain yourself to what is legal, since you’re asking judges not to constrain themselves to what is legal either? The ends justify the means, so go out there and knock some heads!

I’m not a lawyer, obviously, but I believe the Supreme Court has made rulings that are hugely more of a stretch than contending that what is forbidden after conviction should obviously be forbidden before conviction.

Is that not the case?

And Mr. Strongarm, Exactly what kind of evil do you suggest I might go fight?

[lance_strongarm]

@Baal_Houtham

And Mr. Strongarm, Exactly what kind of evil do you suggest I might go fight?

Really? You can’t think of any more evil out there to fight? Everything is fine now?

Start with someone who is wrongly accused an in prison, or in prison for a much longer sentence than they deserve. Go bust them out of jail.