Sunday, July 10, 2022

West Virginia v EPA, No. 20-1530 (Supreme Court)

 I have not read deeply about this ruling, but my thoughts are influenced by the following experience and years of concern about the issues related to this case.

In 2010, I was involved in a private meeting that approximately 15 long term care insurance experts had with two Federal regulators tasked with implementing the CLASS Act (a long-term care insurance program that was supposed to be part of “ObamaCare”). 

The regulators’ intentions clearly violated the Act.  When I asked them how they could do something contrary to the wording of the Act, one responded “I’m comfortable doing so because we’re making it better.” (may not be an exact quote but the meaning is accurate).  The other then added “We might not get away with it.” (that is an exact quote)

As the world is much more complicated than at the founding of our country, I recognize that legislators don’t have the expertise to define laws precisely.  Since that meeting in 2010, I’ve advocated that Congress should ask the Executive Branch to fill in the details of an intended bill, then to send it back to Congress for approval.

The practice described above could be time-consuming and awkward.  It might extend across different Houses and/or Senates so the votes that might have existed to pass the bill in the first place might be gone by the time the analysis is returned.

Furthermore, the staff cannot foresee everything.  The public should be able to comment, which adds further to the timeline.

The timeline can be shortened with a quicker request from Congress or with the Executive Branch starting analyses prior to a request from Congress.

Even if this process worked smoothly, we’d need to be able to react if something went wrong.  Could specific power be granted to deal with such issues?

As per my previous writings, I believe Separation of Powers is the key to our success and our future.  Therefore, I have not been comfortable with the growing power of the Executive branch administrative staff, the use of Executive Orders by Presidents of each party, the failure of Congress to do its job, etc.

I hope West Virginia v EPA will help shake up Congress to force it to improve.  We’ll need pressure from the voters and likely other changes to make this happen.

In the meantime, it could be chaotic.

Unfortunately, Congress’s performance is poor.  How can we improve it?  Here are some ideas:

1)     Consider outlawing practices that the parties use to undermine compromise.  I’m not expert in this area but I think there are other such practices that are questionable.  I’m just trying to get discussion started, more so that strongly advocating specific steps.

a.      The Leader of the House generally does not allow a bill to come to the floor unless it is supported by a majority of the majority party.  If the majority has 51% of the seats, 73% of House members might want to vote for a bill but not be able to bring it to a vote.  If the majority has 60% of the seats, you could still have 70% of the members wanting a bill but not being able to bring it to a vote.  This is disgusting, hence should be outlawed.

b.      Party bosses use committee assignments, etc. to force members to toe that party’s political line.  Maybe we need some reforms in those areas.

c.      If the Executive branch submits a bill, it should get a timely vote.

d.      Politicians use tricks to avoid having to get agreement between the House and Senate on inconsistent bills, such as by pushing the envelope on what can be considered under budget reconciliation short cuts.

2)     I support the filibuster (which encourages compromise).  However, I think the filibuster should require continuous speaking as it did in the past.  There may be other modifications I would support.

3)     I believe Ranked Choice voting would help to address this problem, as I’ve written elsewhere.

4)     A strong (moderate) third-party would also be helpful.  Prior to the Trump administration, I felt that a third-party would not be helpful.  But now, both of our traditional parties are dominated by extremists, hence neither party seems able to represent the broad center of USA politics.

5)     There are other reforms that would/might be helpful that are not directly related to this topic:

a.      Executive nominees should get a vote in a reasonable time frame.  A situation such as Merrill Garland’s should be illegal.

b.      Congress uses a variety of inappropriate accounting mechanisms, akin to Ponzi schemes and check-kiting.

c.      I think ‘litmus test’ questions for Supreme Court candidates are improper.

Sources:

https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

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