Law for Sustainability
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Presidents using the Pen and the Phone.
This year in which Juneteenth became a widely-celebrated event we also had the June, 2022 end-of-term Supreme Court decisions that dismayed overwhelming majorities, disrupted our stability, and derailed progress badly needed by a faltering civilization. One especially disturbing moment in the sorry judicial thinking should not be overlooked: the placement of a profoundly misbegotten slur at the heart of what might look to the uninformed like high-flown rhetoric in defense of fundamental freedoms. Please read this paragraph, where Justice Gorsuch concisely states his reason for concurring in the tying of EPA’s hands, at this time when we and future generations desperately need EPA to defend us against the gathering storm:
When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur. (West Virginia v. EPA, June 30, 2022. Boldface added).
If I had no idea of the facts and history, I would probably agree with all of his general statements. But “pen and phone” simply means to regulate. It is used by both sides. Even to deregulate is pen and phone. It is a strange kind of lie, told by or to the Justice, and if the latter, he must be helped to recognize it as such. “Pen and phone” itself is an innocuous term, and has been used hypocritically, withheld when a President acts in accord with the will of the industry for no action on climate change, and levied when a President acts to protect us. For a Supreme Court Justice to link the dutiful exercise of executive power to the specious charge of circumvention of the will of the people is an immensely sad moment.
When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur. (West Virginia v. EPA, June 30, 2022. Boldface added).
If I had no idea of the facts and history, I would probably agree with all of his general statements. But “pen and phone” simply means to regulate. It is used by both sides. Even to deregulate is pen and phone. It is a strange kind of lie, told by or to the Justice, and if the latter, he must be helped to recognize it as such. “Pen and phone” itself is an innocuous term, and has been used hypocritically, withheld when a President acts in accord with the will of the industry for no action on climate change, and levied when a President acts to protect us. For a Supreme Court Justice to link the dutiful exercise of executive power to the specious charge of circumvention of the will of the people is an immensely sad moment.
The pen and phone meme was manufactured by what has been termed the Republican outrage machine, after Obama noted that he can use a pen to write regulations, and call people on the phone, to convene discussions about how best to regulate. This was, as you may recall, after long recalcitrance on the part of Congress to act on climate change. He was referring to the fact that previous Congresses had created agencies and there was a lot that they can do, fulfilling the mandate they’ve already been given by Congress. In other words, the executive still had a mission of the people to execute, even though the fossil-fuel interests had helped obstructionists to be elected to Congress. The noxious reaction was described by Charles Blow in the New York Times:
The Republican messaging machine is at it again, cranking out scurrilous memes that defame the president and distract from the party’s inaction. The latest talking point is that the president is a “lawless” “dictator” hellbent on operating outside, and indeed above, the law. This is not a particularly new line of attack. Conservatives have been using some variation of the lawlessness theme for some time to refer to the president’s actions, particularly to the administration’s adjustments to the Affordable Care Act. But the distillation and repetition of the word “lawless” gathered new steam last month when the president signaled that he would work with Congress where he could but would issue executive orders, to the extent that he could, when he was stymied by Congress.
Before a cabinet meeting, the president said, “One of the things that I will be emphasizing in this meeting is the fact that we are not going to be waiting for legislation in order to make sure that we are providing Americans the kind of help that they need.” He added, “I’ve got a pen, and I’ve got a phone.”
Before the president could even repeat the sentiment in his State of the Union speech, Republicans were up in arms. Representative Tim Huelskamp tweeted that night, “1st Release of Obama speech reads like the dictates from a King. All orders he will do to bypass Congress #LawLess.”[i]
Michelle Bachman said she would sue “the King”. Ted Cruz said the lawlessness of this president was breathtaking. The right had really learned how to paint their picture, to turn around reality.
Note that the case referred to was in 1810. At that time legislatures were just beginning to manage the people’s problems. Since then, our society has grown some several hundred-fold in size, and a zillion-fold in complexity. The will of the people has been expressed by their representatives in Congress at that time and since then, and they created the agencies to deal with our problems. This is a problem with “originalists” who think current conditions are irrelevant and pull their judgments from the thin air of theory: all we have learned and done over the last couple of hundred years is lost.
When the logic of competition is exalted over other values we lose the morality appropriate to living as a community, and the community must organize to defend itself. This tension has been with us a long time. After the rise of the Robber Barons we had the rise of the worker and Progressive movements and after the return of white supremacy after the Civil War we had the slow build towards the Second Reconstruction, the Civil Rights movement. We are always struggling between the commitment to each other as equally important, which characterizes a community or healthy society, and the grab and get ethic that once it has gotten won’t let go. The American people rejected a President who represented the greedy, but we can’t vote out their representatives on the Supreme Court. Now we have to work very hard to take back our country (as the right-wing loves to say to those who do not fact check).
The agencies were created by the will of Congress. The agencies belong to the people. They represent the will of the people. I used to work in agencies: I considered myself the employee of the people. When I was hired, it was in Massachusetts, in the administration of Governor Michael Dukakis. People called him a “goo-goo”, meaning a believer in good government. I was told that he might walk into our offices at any time, because he liked to walk around and talk to state employees. The people who I worked with were by and large very smart and dedicated and they were trying to be creative and helpful and by and large were encouraged to be. An aide at the legislature might call and ask what we thought of a bill – we could advise them directly. Members of the public or press might call and there was no problem if we tried to answer their questions.
The next governor to come in was William Weld, who generally maintained the environmental mission, as did the other Massachusetts Republican governors who followed him. But a different approach set in concerning the relationship of the agency to the public. Our voice became muted. After a while we were forbidden to talk to people in the legislature without permission. We were not allowed to answer questions from the press without approval. Interactions with the public were filtered through political appointees and public relations people. This separation of the agency from its masters – the people, and the Legislature – was to me a slow-motion crime in progress, and when Democrats finally came back, they loosened things up a bit, but kept in place the general authority of the political appointees to control “the message”.
The Democrats had to do that, it seemed, because the attacks on government had increased, and they became defensive. A cynicism about government was growing. Agencies were parodied as inefficient and corrupt, even “jack-booted thugs”. Too many people were led to see them that way. While I saw around me dedicated public servants working hard and accomplishing sometimes amazingly well-devised initiatives, the Boston Herald’s Howie Carr regularly and recklessly referred to government workers as “hacks and flacks”. Many agencies are finely tuned tools for a society to address its needs, that taxpayers paid to have. Those that are not working well are to be fixed and made to work as they should, not reviled. The Administrative State is not the hateful story of the Deep State spread by Steve Bannon and the like. It is the means of governance that belongs to the citizens.[ii]
Back in 1998, Georgetown Law Professor Lisa Heinzerling wrote an article entitled “Regulatory Costs of Mythic Proportions”, in which she pointed out one way in which our understanding of the fact that we have these large agencies tasked with protecting us has been distorted. (Footnotes are removed from the quotes below). She wrote that
Any close observer of the regulatory process has learned by now that the government often requires the expenditure of a huge sum of money -sometimes billions of dollars-to save a single human life. She has also learned that there are many regulatory options available that would produce the same benefits at a far lower cost. She has learned these things largely from a table prepared during the 1980s by an economist at the Office of Management and Budget named John Morrall. This table shows the cost per life saved of various risk-reducing federal regulations. According to the table, this cost varies dramatically from regulation to regulation, from a low of $100,000 per life saved to a high of $72 billion. One-third of the regulations on the list reportedly cost over $100 million for every life they save. These numbers are ubiquitous in the literature on risk regulation.
Numerous scholars have relied on Morrall's table, as well as earlier and later versions of it, in arguing that the costs of regulation often exceed its benefits, that many more cost-effective strategies exist for reducing risk, that regulation sometimes increases overall risk, and that regulatory priorities are not set in a rational manner. Morrall's calculations, in short, have been used to support every one of the most prominent current critiques of the regulatory system. They have also played a significant role in political debates over regulatory reform, including most recently the debates surrounding the Republican proposed Contract with America.[iii]
Heinzerling showed how far off the numbers were from actual reality and how strange was the reasoning that produced this gross misperception of the value of the work of the agencies created to protect us and our world.
Morrall rejected the agencies' estimates of risk and relied instead upon what he regarded as more reliable-and inevitably lower--estimates. Use of lower estimates of risk led to lower estimates of lives saved, which led to higher costs per life saved. Second, in all cases, Morrall applied a technique that has come to be known as "discounting lives": He reduced the estimates of the number of lives that would actually be saved by a regulation in the future by ten percent for every year expected to pass before the lives were saved.
When Trump was elected with a mandate from his backers to dismantle the regulatory state, he was simply the opportunistic implementer of a long effort to discredit the agencies who tell companies to reduce emissions of things that poison us all.[iv] Congress created the EPA to do a job, and no Congress has yet said it should stop doing that job. The forces opposed to environmental administration have executed an end-run around the people’s will. The decision with which Gorsuch concurred was one that removed from EPA’s toolbox what was carefully constructed in response to Congress’s mandate to come up with the Best System of Emission Reduction. It was not the place of the Supreme Court to remove that tool from the agency entrusted with the mission of defending us all. Long held is the tradition that judges should not needlessly interfere with the other branches, but here the highest court in our land has overruled the Congresses that had the ability to pass these laws, and the executive trying to carry out their will.[v]
After the right-wing made-up fuss about Obama’s reference to pen and phone, Heinzerling published an article entitled “A Pen, A Phone, and the US Code”:
This Essay concerns a fact and a problem that bedevil modem government. The fact is that, as a society, we rely-deeply and pervasively-on administrative agencies to fix our troubles. By law, we place problems like air pollution, water pollution, climate change, toxic chemicals, food hazards, workplace risk, consumer deception, and more at the doorstep of administrative agencies and say to the agencies: please fix this, will you? The problem is that we often do not let them do their jobs. The result is a vast gulf between the promises of law and the realities we face.
The constraints on agencies and agency personnel take many forms. We slash their budgets, harass them in congressional hearings, nitpick their reasoning to death in the courts, and paralyze them with endless analytical prerequisites to taking action on the problems they are charged with addressing.
Here I would like to discuss just one of the constraints on agencies: White House control over agency decisionmaking. President Obama started this year with a metaphor: "I've got a pen, and I've got a phone," the President said.' What he meant is that even without action from Congress, he would use executive orders (the pen) and his convening power (the phone) to get things done. Critics of the Administration described the strategy as one of"bypass[ing]" Congress when Congress fails to act. Picking up the pen and the phone would, according to the President and his aides, lead to a "year of action" on priority issues. I will suggest, however, that presidential power is deployed as often to delay or stop agency action as to prompt it. I will suggest that the President-and his aides-should, more often, put down their pens and their phones and let the agencies do their work. The Administration can get a whole lot done not by "bypassing" Congress but by following instructions laid down in statutes Congress has already passed.[vi]
For those of you who have been paying attention, you know where this is going. The April before the 2016 election, The Center for Immigration Studies listed steps a new president could take with pen and phone to change American immigration policy.[vii] And what did Trump do when he got into office? Immediately set about dismantling environmental health and safety rules and programs, created to serve the will of the people, using his pen.[viii] He didn’t even use his phone to convene public discussions because he didn’t care what the public wanted. The overwhelmingly negative comments from the public about his proposed deregulatory actions were ignored. He was implementing the will of the polluters and bigots whose backing he’d wrapped up, instead of the public’s.
But Obama (and now Biden) are the ones accused of circumventing Congress and the will of the people. When EPA’s efforts to act on climate change are demeaned by a Supreme Court Justice as “substituting” for our will, we are in a sad state of public understanding of what democracy is and what it is not. The pen and the phone are tools, Justice Gorsuch. Your concurrence serves the purposes of a tiny sector which has usurped the place reserved by the founders for the rest of us. You have disrespected the original intent of our Constitution.
[i] “A Pen, A Phone, and a Meme”, February 7, 2014, https://www.nytimes.com/2014/02/08/opinion/blow-a-pen-a-phone-and-a-meme.html.
[ii] Of course, some agencies have been out of control, such as the CIA and FBI of past administrations. That some of these violations have been either fixed or mitigated shows that our system can evolve, and that problems remain means we have more work to do.
[iii] Yale Law Journal, vol. 107, no. 7, May 1998, pp. 1981-2070. One basic premise of the Contract was to reduce taxes because they are being wasted on regulatory agencies that were imposing unnecessary costs.
[iv] I persist in believing that if more people knew about the enormous amounts of money and propaganda pushed into the minds of a too-credulous populace that at least some people would begin to wake up to the fact that their own government has been captured to a very large extent by people who have convinced them that those who work in their interest are doing that very thing: stealing their government. Trump’s Stop the Steal cry, used to deflect attention from his attempted theft of our votes, is simply a childish version of what has long been a sophisticated plan. How do we get the information to those who have not yet seen through the ruse? If Fox viewers were to absorb information such as The Intercept’s recent “How Charles Koch Purchased the Supreme Court’s EPA Decision”?, is it not impossible to think that maybe we could counter the reflexive rejection that has been deeply conditioned, and their eyes could be opened? https://theintercept.com/2022/06/30/supreme-court-epa-climate-charles-koch/?utm_medium=email&utm_source=The%20Intercept%20Newsletter
[v] Unmentioned in this essay is that the Supreme Court in this case allowed a suit about a regulation EPA hasn’t, but only might produce, in order to head it off at the pass. This violates its own traditional practice as well as the separation of powers principle that is the bedrock of our Constitution.
[vi] Georgetown Law Journal Online, 103, 2013-2014, pp. 59-65.
[vii] https://cis.org/Report/Pen-and-Phone.
[viii] https://climate.law.columbia.edu/content/climate-deregulation-tracker-actions, and see Hannah Perls’ “Deconstructing Environmental Regulation Under Trump” Vermont Law Review, Vol. 45, p. 591, 2021 https://lawreview.vermontlaw.edu/wp-content/uploads/2021/07/05_Perls_Final.pdf.
The Republican messaging machine is at it again, cranking out scurrilous memes that defame the president and distract from the party’s inaction. The latest talking point is that the president is a “lawless” “dictator” hellbent on operating outside, and indeed above, the law. This is not a particularly new line of attack. Conservatives have been using some variation of the lawlessness theme for some time to refer to the president’s actions, particularly to the administration’s adjustments to the Affordable Care Act. But the distillation and repetition of the word “lawless” gathered new steam last month when the president signaled that he would work with Congress where he could but would issue executive orders, to the extent that he could, when he was stymied by Congress.
Before a cabinet meeting, the president said, “One of the things that I will be emphasizing in this meeting is the fact that we are not going to be waiting for legislation in order to make sure that we are providing Americans the kind of help that they need.” He added, “I’ve got a pen, and I’ve got a phone.”
Before the president could even repeat the sentiment in his State of the Union speech, Republicans were up in arms. Representative Tim Huelskamp tweeted that night, “1st Release of Obama speech reads like the dictates from a King. All orders he will do to bypass Congress #LawLess.”[i]
Michelle Bachman said she would sue “the King”. Ted Cruz said the lawlessness of this president was breathtaking. The right had really learned how to paint their picture, to turn around reality.
Note that the case referred to was in 1810. At that time legislatures were just beginning to manage the people’s problems. Since then, our society has grown some several hundred-fold in size, and a zillion-fold in complexity. The will of the people has been expressed by their representatives in Congress at that time and since then, and they created the agencies to deal with our problems. This is a problem with “originalists” who think current conditions are irrelevant and pull their judgments from the thin air of theory: all we have learned and done over the last couple of hundred years is lost.
When the logic of competition is exalted over other values we lose the morality appropriate to living as a community, and the community must organize to defend itself. This tension has been with us a long time. After the rise of the Robber Barons we had the rise of the worker and Progressive movements and after the return of white supremacy after the Civil War we had the slow build towards the Second Reconstruction, the Civil Rights movement. We are always struggling between the commitment to each other as equally important, which characterizes a community or healthy society, and the grab and get ethic that once it has gotten won’t let go. The American people rejected a President who represented the greedy, but we can’t vote out their representatives on the Supreme Court. Now we have to work very hard to take back our country (as the right-wing loves to say to those who do not fact check).
The agencies were created by the will of Congress. The agencies belong to the people. They represent the will of the people. I used to work in agencies: I considered myself the employee of the people. When I was hired, it was in Massachusetts, in the administration of Governor Michael Dukakis. People called him a “goo-goo”, meaning a believer in good government. I was told that he might walk into our offices at any time, because he liked to walk around and talk to state employees. The people who I worked with were by and large very smart and dedicated and they were trying to be creative and helpful and by and large were encouraged to be. An aide at the legislature might call and ask what we thought of a bill – we could advise them directly. Members of the public or press might call and there was no problem if we tried to answer their questions.
The next governor to come in was William Weld, who generally maintained the environmental mission, as did the other Massachusetts Republican governors who followed him. But a different approach set in concerning the relationship of the agency to the public. Our voice became muted. After a while we were forbidden to talk to people in the legislature without permission. We were not allowed to answer questions from the press without approval. Interactions with the public were filtered through political appointees and public relations people. This separation of the agency from its masters – the people, and the Legislature – was to me a slow-motion crime in progress, and when Democrats finally came back, they loosened things up a bit, but kept in place the general authority of the political appointees to control “the message”.
The Democrats had to do that, it seemed, because the attacks on government had increased, and they became defensive. A cynicism about government was growing. Agencies were parodied as inefficient and corrupt, even “jack-booted thugs”. Too many people were led to see them that way. While I saw around me dedicated public servants working hard and accomplishing sometimes amazingly well-devised initiatives, the Boston Herald’s Howie Carr regularly and recklessly referred to government workers as “hacks and flacks”. Many agencies are finely tuned tools for a society to address its needs, that taxpayers paid to have. Those that are not working well are to be fixed and made to work as they should, not reviled. The Administrative State is not the hateful story of the Deep State spread by Steve Bannon and the like. It is the means of governance that belongs to the citizens.[ii]
Back in 1998, Georgetown Law Professor Lisa Heinzerling wrote an article entitled “Regulatory Costs of Mythic Proportions”, in which she pointed out one way in which our understanding of the fact that we have these large agencies tasked with protecting us has been distorted. (Footnotes are removed from the quotes below). She wrote that
Any close observer of the regulatory process has learned by now that the government often requires the expenditure of a huge sum of money -sometimes billions of dollars-to save a single human life. She has also learned that there are many regulatory options available that would produce the same benefits at a far lower cost. She has learned these things largely from a table prepared during the 1980s by an economist at the Office of Management and Budget named John Morrall. This table shows the cost per life saved of various risk-reducing federal regulations. According to the table, this cost varies dramatically from regulation to regulation, from a low of $100,000 per life saved to a high of $72 billion. One-third of the regulations on the list reportedly cost over $100 million for every life they save. These numbers are ubiquitous in the literature on risk regulation.
Numerous scholars have relied on Morrall's table, as well as earlier and later versions of it, in arguing that the costs of regulation often exceed its benefits, that many more cost-effective strategies exist for reducing risk, that regulation sometimes increases overall risk, and that regulatory priorities are not set in a rational manner. Morrall's calculations, in short, have been used to support every one of the most prominent current critiques of the regulatory system. They have also played a significant role in political debates over regulatory reform, including most recently the debates surrounding the Republican proposed Contract with America.[iii]
Heinzerling showed how far off the numbers were from actual reality and how strange was the reasoning that produced this gross misperception of the value of the work of the agencies created to protect us and our world.
Morrall rejected the agencies' estimates of risk and relied instead upon what he regarded as more reliable-and inevitably lower--estimates. Use of lower estimates of risk led to lower estimates of lives saved, which led to higher costs per life saved. Second, in all cases, Morrall applied a technique that has come to be known as "discounting lives": He reduced the estimates of the number of lives that would actually be saved by a regulation in the future by ten percent for every year expected to pass before the lives were saved.
When Trump was elected with a mandate from his backers to dismantle the regulatory state, he was simply the opportunistic implementer of a long effort to discredit the agencies who tell companies to reduce emissions of things that poison us all.[iv] Congress created the EPA to do a job, and no Congress has yet said it should stop doing that job. The forces opposed to environmental administration have executed an end-run around the people’s will. The decision with which Gorsuch concurred was one that removed from EPA’s toolbox what was carefully constructed in response to Congress’s mandate to come up with the Best System of Emission Reduction. It was not the place of the Supreme Court to remove that tool from the agency entrusted with the mission of defending us all. Long held is the tradition that judges should not needlessly interfere with the other branches, but here the highest court in our land has overruled the Congresses that had the ability to pass these laws, and the executive trying to carry out their will.[v]
After the right-wing made-up fuss about Obama’s reference to pen and phone, Heinzerling published an article entitled “A Pen, A Phone, and the US Code”:
This Essay concerns a fact and a problem that bedevil modem government. The fact is that, as a society, we rely-deeply and pervasively-on administrative agencies to fix our troubles. By law, we place problems like air pollution, water pollution, climate change, toxic chemicals, food hazards, workplace risk, consumer deception, and more at the doorstep of administrative agencies and say to the agencies: please fix this, will you? The problem is that we often do not let them do their jobs. The result is a vast gulf between the promises of law and the realities we face.
The constraints on agencies and agency personnel take many forms. We slash their budgets, harass them in congressional hearings, nitpick their reasoning to death in the courts, and paralyze them with endless analytical prerequisites to taking action on the problems they are charged with addressing.
Here I would like to discuss just one of the constraints on agencies: White House control over agency decisionmaking. President Obama started this year with a metaphor: "I've got a pen, and I've got a phone," the President said.' What he meant is that even without action from Congress, he would use executive orders (the pen) and his convening power (the phone) to get things done. Critics of the Administration described the strategy as one of"bypass[ing]" Congress when Congress fails to act. Picking up the pen and the phone would, according to the President and his aides, lead to a "year of action" on priority issues. I will suggest, however, that presidential power is deployed as often to delay or stop agency action as to prompt it. I will suggest that the President-and his aides-should, more often, put down their pens and their phones and let the agencies do their work. The Administration can get a whole lot done not by "bypassing" Congress but by following instructions laid down in statutes Congress has already passed.[vi]
For those of you who have been paying attention, you know where this is going. The April before the 2016 election, The Center for Immigration Studies listed steps a new president could take with pen and phone to change American immigration policy.[vii] And what did Trump do when he got into office? Immediately set about dismantling environmental health and safety rules and programs, created to serve the will of the people, using his pen.[viii] He didn’t even use his phone to convene public discussions because he didn’t care what the public wanted. The overwhelmingly negative comments from the public about his proposed deregulatory actions were ignored. He was implementing the will of the polluters and bigots whose backing he’d wrapped up, instead of the public’s.
But Obama (and now Biden) are the ones accused of circumventing Congress and the will of the people. When EPA’s efforts to act on climate change are demeaned by a Supreme Court Justice as “substituting” for our will, we are in a sad state of public understanding of what democracy is and what it is not. The pen and the phone are tools, Justice Gorsuch. Your concurrence serves the purposes of a tiny sector which has usurped the place reserved by the founders for the rest of us. You have disrespected the original intent of our Constitution.
[i] “A Pen, A Phone, and a Meme”, February 7, 2014, https://www.nytimes.com/2014/02/08/opinion/blow-a-pen-a-phone-and-a-meme.html.
[ii] Of course, some agencies have been out of control, such as the CIA and FBI of past administrations. That some of these violations have been either fixed or mitigated shows that our system can evolve, and that problems remain means we have more work to do.
[iii] Yale Law Journal, vol. 107, no. 7, May 1998, pp. 1981-2070. One basic premise of the Contract was to reduce taxes because they are being wasted on regulatory agencies that were imposing unnecessary costs.
[iv] I persist in believing that if more people knew about the enormous amounts of money and propaganda pushed into the minds of a too-credulous populace that at least some people would begin to wake up to the fact that their own government has been captured to a very large extent by people who have convinced them that those who work in their interest are doing that very thing: stealing their government. Trump’s Stop the Steal cry, used to deflect attention from his attempted theft of our votes, is simply a childish version of what has long been a sophisticated plan. How do we get the information to those who have not yet seen through the ruse? If Fox viewers were to absorb information such as The Intercept’s recent “How Charles Koch Purchased the Supreme Court’s EPA Decision”?, is it not impossible to think that maybe we could counter the reflexive rejection that has been deeply conditioned, and their eyes could be opened? https://theintercept.com/2022/06/30/supreme-court-epa-climate-charles-koch/?utm_medium=email&utm_source=The%20Intercept%20Newsletter
[v] Unmentioned in this essay is that the Supreme Court in this case allowed a suit about a regulation EPA hasn’t, but only might produce, in order to head it off at the pass. This violates its own traditional practice as well as the separation of powers principle that is the bedrock of our Constitution.
[vi] Georgetown Law Journal Online, 103, 2013-2014, pp. 59-65.
[vii] https://cis.org/Report/Pen-and-Phone.
[viii] https://climate.law.columbia.edu/content/climate-deregulation-tracker-actions, and see Hannah Perls’ “Deconstructing Environmental Regulation Under Trump” Vermont Law Review, Vol. 45, p. 591, 2021 https://lawreview.vermontlaw.edu/wp-content/uploads/2021/07/05_Perls_Final.pdf.
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