Use Scalia's Words Against Him

by Deacon Blues

The Supreme Court handed the EPA and environmentalists a major victory today when in a 6-2 vote (with Justice Alito abstaining), the Court ruled the EPA had the authority to regulate the effects of multi-state pollution, specifically from upstream polluters like coal-fired plants.

Naturally, the two dissenters were Justices Antonin Scalia and Clarence Thomas, but in the case of Scalia, his argument wasn't overtly pro-industry and anti-environmental. Rather, Scalia based his dissent on a different issue, namely the EPA's lack of clear congressional and statutory authority to implement a mechanism for determining each polluting entity's responsibility.

"EPA’s utterly fanciful ‘from each according to its ability’ construction sacrifices democratically adopted text to bureaucratically favored policy," Scalia wrote.

[snip]

The case, Scalia said from the bench, illustrates "the major problem that many citizens have with the federal government these days: that they are governed not so much by their elected representatives as by an unelected bureaucracy operating under vague statutory standards."

If Scalia places so much weight upon "democratically adopted text" passed by elected representatives, then under what basis did Scalia and Clarence Thomas ignore clear congressional intent and voting records to gut the Voting Rights Act and rule that the Court was better equipped than Congress to address the issue of discrimination and voting rights?

If Scalia places so much weight upon "democratically adopted text" passed by elected representatives, then under what basis did Scalia and Clarence Thomas destroy the McCain-Feingold campaign finance reform measure, which was democratically adopted text passed by elected representatives? Scalia and Thomas would argue that the law and the Constitution equate money with speech, and also extend the rights of individuals to corporations. Yet where in the laws or the Constitution is there a statutory foundation for corporate money being treated as speech, or for corporations to be extended the rights of the individual?

Having said that, Scalia gave Democrats the tools to undercut his likely dissent in any effort to strip post-Citizens United groups of their tax-exempt status. As a reminder, these groups are getting their tax exemption because the IRS erroneously issued a regulation in 1959 that allowed social welfare organizations to get this treatment if they were "primarily engaged" in social welfare work, whereas the actual tax code requires these groups to be involved "exclusively" in promoting social welfare to get the tax exempt status. If Scalia is such a proponent of democratically adopted text over bureaucratically issued regulations, then he and Thomas should have no problem with any bill that guts the tax exempt status of political groups fronting as social welfare entities.

Yeah, I know, they're really nothing more than political hacks in robes.