Advisory Opinions - Environmental Law Has 'Major Questions'

Episode Date: March 18, 2022

On today’s podcast, David and Sarah discuss red state crime rates versus blue state crime rates, environmental law as a vehicle for rescuing the American constitutional structure, why senators make better presidential candidates than they used to, and the evolutionary psychology behind bad gamer behavior.   Show Notes: -Axios: Dem group points to "Red State Murder Problem" -Massachusetts v. Environmental Protection Agency -SCOTUSblog: Greenhouse gases and “major questions”: Justices to hear argument on EPA’s power to tackle climate change Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And hi, Sarah. With Sarah Isger. We're in the same room. Exactly. Right across the table. This is not the normal setting. Normally, we're Zooming as we do this. But I'm in D.C. and we're doing this in person. So this will be fun.

Will it? It will. I think it will. We'll let listeners judge. All right. Let's start with, we're going to talk about a couple of broad topics today. We're going to begin with a discussion of crime and crime rates triggered by Sarah going on a, would we call it a Twitter rant? You didn't, you didn't, the public didn't even see the main rant because I actually also emailed the author of the news story. Oh, did you? I did.

Oh, fantastic. You think I'm not, but I am very much that old lady who like takes the time to like point out errors in the crossword puzzle. Oh, that's fantastic. Okay. Well, you'll have to tell us about it. So we're going to start with crime and then we're going to move to environmental law. So two interesting topics, but let's go ahead and start with crime. And we're going to start with a story from Axios by Mike Allen. I guess that's who you emailed.

It is. Okay. Mike Allen at Axios. And the headline is, Dem Group Points to, Quote, Red State Murder murder problem and trying to sort of flip the political script on rising crime rates to note that eight of the top 10 highest per capita murder states with the highest per capita murder rates all voted for President Trump, which is true. It is. Which is true. So that might be something that a lot of people don't know. The murder rates are not actually highest in Illinois or Maryland or New York or California. They're higher in Kentucky and Tennessee and Mississippi and Alabama and Louisiana.

But, Sarah, you had a bone to pick. Okay, so this is what I do for fun, like in my free time. Slash when I don't, like this is my procrastination thing, you know? So like I had a big thing that I needed to edit and it was like 2,500 words. And I, it just felt overwhelming, frankly, to jump into that document. So instead I was reading news and I saw this and I was like, oh, that's really interesting. So I clicked through and Axios to their huge credit, and I have big complaints when I click through to other news stories, they don't have the link to the report they're talking about,

the court case they're talking about, et cetera. Axios very much did. So I click through to Third Way's report. Now, Third Way, I'm going to read from their about page. Third Way is a national think tank that champions modern center left ideas. This This is like the 90s Tony Blair, Bill Clinton. I think Clinton's, you know, more famous for it, but in my mind, Tony Blair is, so whatever. Okay, so I don't blame a hammer for seeing nails, right? Like this is not a hit on Third Way or a hit on Axios, by the way. It's just like how you couch something matters. Yeah. So in the Third Way report, their conclusion is,

The increase in murders is not a liberal city's problem, but a national problem. Murder rates are actually higher in Republican Trump-voting states that haven't even flirted with ideas like defund the police. in Republican Trump voting states that haven't even flirted with ideas like defund the police. A more accurate conclusion from the data is that Republicans do a far better job blaming others for high murder rates than actually reducing high murder rates. Now, right off the bat, something I'm really thinking about lately is how you teach kids literacy. They have all this information at their fingertips, right? The Internet gives you everything that has ever been thought by humans, but they don't know how to go through it all.

And that's something, I don't know why we're teaching, you know, calc two instead of media literacy. So right off the bat, a red flag should have gone off with that really partisan sentence at the end. Like it's sort of like a weird partisan hit, which you're like, hmm, if you wanted to make that partisan hit, I bet you're willing to twist the data a little to be able to make that case. So then I'm like, all right, so now I go back through the rest of it.

So first of all, they are looking at the per capita murder rate at a state level and comparing that to how those voters in the state voted for president. Mm hmm. Well, how are those two connected? Because, first of all, defund the police funding for police departments is largely decided at a local city government city budget level. So there's that. But state governments can set sort of broad policy goals but we're not even looking at state government so for instance louisiana is on the

list as a trump voting state but louisiana has a democratic governor and a democratic mayor of new orleans right so that i was like well's odd. Like how it's a weird conclusion to draw. At the same time, just to be fair, they listed Georgia as a Biden voting state, even though Biden has a Republican governor. Although Georgia has a Republican governor. Yeah. Georgia has a Republican governor, a Democratic mayor of Atlanta. Okay. So then I was like, you know what? I just need to go do this myself. I'm going to go do all the data that I want from a report like this. If I were just trying to figure out what actually causes crime and how politics interweaves with crime. All right.

So we're going to do per capita murder rates. Roughly speaking, the per capita murder rate averaged out across the Trump states is about eight per hundred thousand. And the per capita murder rate in Biden voting states is five per hundred thousand. So the Trump murder rate percentage wise actually is quite a bit higher. Yeah. Percentage wise. But let me walk through the murder rates for some of the biggest cities in those states that they're flagging and again eight and five were the trump number and the biden number uh columbia south carolina 22 per 100 000 little rock arkansas 19 per 100 000 louisville 14 new orleans 30 memphis 30 birmingham alabama 50 and then of course st louis missouri 65 murders per hundred thousand kansas city in the same state 30 per hundred thousand

okay so i think it's fair that when you look at those numbers versus the state averages what's driving those murder rates is those cities right so right off the bat i think using state level data feels misleading to me all right so then i went through and looked up the mayors for all those cities so i'm not going to go through them all but they're all democratic mayors except for columbia south carolina that has technically a non-partisan election but they elected a Republican. He is a Republican, whether he was elected as one or not. Now, does that prove, by the way, that Democrats cause high crime? Well, no, because if all cities, for instance, had Democratic mayors and some have higher murder rates than others, right, you have to actually look for some causality.

And basically every truly large city in the U.S. with a handful, a tiny handful have Fort Worth. Yeah. Yeah. Have Democratic mayors. I mean, this is just at one point, I think the biggest city in America with a Republican mayor was Lubbock. Yeah. So. Right. Ten years ago. Yeah. So you can't just say, oh, Democrats lead to higher crime because that's not looking at the data correctly either so uh david just to walk through the 10 states not that people listening need to memorize these but new mexico missouri arkansas louisiana kentucky tennessee louisiana mississippi georgia south carolina were the top 10 per capita for state crime.

David, I'm going to read you another list of states. New Mexico, Arkansas, Louisiana, Mississippi, Alabama, Georgia, South Carolina, Kentucky, West Virginia. Do you know what that list is? I do not. It's the top 10 poorest states in the United States. Now, the only things that are missing there are Missouri and Tennessee. And we've added in West Virginia and sorry, the District of Columbia, I forgot to include. Right. So eight of the 10 overlap. And notably, New Mexico, right, which was always an outlier in the per capita crime, like, well, that's not a state you think of. Now, mind you, when you deal with per capitas, there's always, you always end up having a little bit of a bias towards smaller numbers.

Because in California, for instance, there's just so many freaking people, it'd be hard to murder enough people. Not that people haven't tried. They're just pretty hard in some places. Right. Okay. So again, you can't prove causality that way, but that overlap looks a lot better to me than Dem mayor overlap, then Trump voter overlap, which you can't even figure out what the causality there would be. Yeah. And yeah um and yeah i mean it there's also some intuitive aspect to this that poor states are both um going to have higher crime because

people in the state are poor but also because poor states then aren't going to have the property taxes to be able to fund a vibrant well-trained police department now one other thing i want to criticize here is the defund the police aspect of this and right you remember that they said um voting trump voting states that haven't even flirted with the idea of defund the police but of course states don't flirt with the idea of defund the police cities do st louis and k, remember, 65 murders per capita, 30 murders per 100,000, very much flirted with defund the police. The Ferguson effect was studied in a suburb of St. Louis. And the Kansas City mayor wanted to move $42 million out of the police budget,

which I didn't actually look up what the Kansas City police budget is, but that has to be a huge chunk. St. Louis talked about moving about $8 million out of their police budget. So yes, actually, a lot of these cities have flirted with defund the police, even if the states haven't. But again, voters don't flirt with defund the police. So their whole Trump voting thing doesn't even match with a state level defund the police to a city level that they're not looking at. And so, David, the question is for a lot of people and clearly implied in this, does defund the police cause a rise in crime? This data doesn't disprove whether defund the police causes a rise in crime because they're not looking at the right data. But in the reverse,

it also doesn't prove that defund the police causes a rise in crime. And again, that's where those top 10 poorest state numbers become really handy. Because in order to look at actually whether defund the police does, you're going to have to look at before and after and subtract out all the things that could have changed, like COVID, for instance, that's happening at the same time. You know, you're going to want some real regression analysis that people are doing. And the data is a little mixed on it so far, frankly. Yeah. But if you just want to look at big picture state level, what's driving crime? It's per capita income. Yeah. Well, and, you know, I went and did a little more digging, too, because I was I was fascinated by this. And one thing. So here's the bottom line that's from the

Axios report. It says, quote, you would think that the increase in murder is a phenomenon found mostly in liberal cities, Third Way says, but the increase in murders is not a liberal cities problem, but a national problem. Okay. Birmingham is a liberal city. Nashville is a liberal city. Memphis is a liberal city. New Orleans is a liberal city. So let's just, the fact that they're in a red state doesn't mean they're not a liberal city. They're an island of blue and a sea of red. But here's what I do want to agree with them. The increase in murders is not, it should say, the increase in murders is, it says it's not a liberal city's problem, but it should be. It's not just a liberal cities problem,

but also a national problem because some of the interesting county level data indicates that some really rural counties are among the most, have among the most high, some of the highest murder rates in the United States. But again, what do they have in common with some of these city zip codes? It's poverty. It's poverty. And so when you have poverty in the United States of America, you tend to have higher crime rates. You tend to, and the other thing I'll point out is a lot of these jurisdictions, they didn't flirt and haven't flirted with defund the police. I think the really interesting question isn't so much, did anyone flirt with a defund the police. I think the really interesting question isn't so much, did anyone flirt with a defund the police? I think the more interesting question is,

can you look at, because crime has gone up everywhere. That's right. It has gone up everywhere. Do places where it's gone up more than another place, have they had a major controversy regarding police brutality? Have they had any indication of police, for example, cutting back on their presence in high crime areas? Those are really interesting questions. And that's the Ferguson effect. And that's the Ferguson effect. Which Jim Comey talked about. This is back to 2014. Jim Comey was talking about it in 2014 and 2015 as we saw St. Louis spike. Here's what I think this article should have been

about. I think it should have said basically to the effect of the media keeps talking about the murder rate in Chicago, San Francisco, Los Angeles, and New York. Yeah. When in fact, that's not where the story is. The story is here in louis new orleans you know the rest of these these cities and that yes it's not red state blue state this clearly proves it's not red state blue state the problem is whoever thought it was red state blue state and to the extent that trump voters were feeling high-minded that it was red state blue state i am happy to disavow them of that notion because it ain't. But so we have narratives that are false out there, but replacing it with another false narrative isn't helpful.

And saying that it's a Trump voter state problem, well, that's just not relevant. Same as it wasn't relevant that California voted for Joe Biden. Right, right. Exactly. And I think that what's really important about that, there's a couple of takeaways from this. One is, anytime you're talking about crime and you get simple, you're wrong. So that's one takeaway. Anything that gets really simple when you're talking about crime, just go ahead and just acknowledge, I'm wrong. I'm wrong. So that's one. Number two is exactly what you said, that

if you live in a red state like I do, when people talk about murder rates, they talk Chicago. They talk New York. They don't talk about the city that they actually live in or in there in a suburb of. It's always an out there problem. But if you live in the South, crime rates are a right here problem. And they've always been. I mean, this is, you know, the South is the more violent region of the United States of America, in part because it's traditionally been one of the poorest regions in the United States. And so a lot of red state folks have their eyes fixed on Cook County, Illinois, and there's another place they can look that's really close by. And maybe more importantly than looking, there's another place to solve. Yeah. Like stop trying to solve Chicago's

problems if you live in Memphis. Yeah, right. Right. Exactly. Exactly. But you know what? That's a problem that extends beyond crime. Oh, you mean maybe we were talking about something larger than just crime in this segment. Oh, interesting. What an interesting notion. Because there's a lot of people legislating right now in their home communities to not be San Francisco when they're not San Francisco. This is also, though, an issue with the media in general. This is the shark attack problem. There's a whole bunch of shoplifting going on in San Francisco and people are like, oh my God, these people are walking in and just stealing stuff.

Yes. But the real question is, was that happening last year? Has it increased? And it's fascinating when, you know, there have been some great journalists who've done deep dives into this and like, it's not obvious. And to your point, like crime is complicated. Data is hard. Regression analysis is hard on some of these things. And so it's really easy to like talk about every shark attack. on some of these things. And so it's really easy to like talk about every shark attack. It's really hard to look at the trend of shark attacks if not every shark reports its attack. So if the reports are going up versus the attacks.

Wait, are you saying that there are sharks out there who are irresponsibly not reporting their attacks? Yeah, look, when I think shark attacks, honestly, humans do far more to sharks than they do to us. So I would like the sharks to get to report stupid human behavior, hurting harmless sharks out there. lives across industries and the world. Actuaries have the freedom to work anywhere. And according to U.S. News and World Report, we're the 25th top paying career.

Make an impact as a fact seeker and a truth teller. Use your math skills for good as an actuary. The world needs you. And maybe that's a good segue, David, to our owls. To our owls. Yeah, yeah. So, you know, let's let's segue to environmental law, to owls, to really important. You know what could be let's let's sort of put Dobbs in its own category. The political category, frankly, in the media attention political category. Dobbs, the abortion case will have a big impact,

broad, obviously on abortion. But that's a single issue that frankly, isn't going to affect that many people's lives day to day. It will, however, impact what the court, whatever it says on stare decisis, how the court is going to treat precedent from now on. So I don't want to minimize what Dobbs means. Abortion is important, but stare decisis is even more important. That being said, if it were a stare decisis case about any other topic, and we've had them like on the unanimous jury verdict, that was a stare decisis case where Kagan writes a lot about stare decisis and how the court should treat precedent. And nobody has really cared that much. Well, the abortion case is of incredible political importance. It's of constitutional

importance regarding stare decisis and how you're interpreting the Constitution. The reality is it would be of much greater importance if the result of the case was banning abortion, which that's not on the table. And so abortion is going to continue to be legal in the United States, regardless of how the Supreme Court rules in this case. But it's politically, it's in the stratosphere of importance. EPA case is really interesting because structurally, structurally for how we govern this country. Huge. Hugely important.

So do you want to kind of lay out why that is? Okay. Yes. And by the way, like the Second Amendment case, the Coach Kennedy case that we're going to talk about in another few weeks, those fall under the Dobbs category for me. They're going to make huge headlines. They're a big deal politically in terms of how they impact elections, campaigns, whatever. But this case is the most important case for separation of powers. And it's in the bucket with Arizona versus city of San Francisco that we talked about a couple of weeks ago. Remember, that was the public charge case where Arizona wants to intervene to defend the Trump administration's immigration policy, even though the Biden administration doesn't want to defend it, but also doesn't want to go through notice and comment to repeal it. They simply want to rely on a single district court that's a nationwide injunction.

And so the question is, you know, how are we making laws in this country and how are we defending them in that administrative agency posture? And let's set the table just a little bit more here, which is the premise of our whole conversation is going to be if congress knows someone else will do their job for them yeah they have no incentive to legislate and so every time the court says an administrative agency can do that then congress is like cool cool we don't have to do that that That's why the Arizona case is kind of important, because it says that, like, whether the administration can repeal, whether they have to go through that multi-year notice and comment period, or whether states actually have now this gatekeeping role for the administrative state when they're out of the presidential office. So let's back up to what started it all, David. The great grandfather of both of these cases, which, right, one's on immigration and one's on power plants.

And they're all going to go back to a case called Massachusetts v. EPA. In that case, the facts aren't all that important, frankly, but the Bush EPA is like, yeah, we're not going to touch greenhouse gases, basically. We don't care. We don't want to do it. And so Massachusetts, along with a set of blue states and some environmental groups, sue the EPA and say, no, you have to. Now, the big question there wasn't actually on the merits. The big question was, wait, does Massachusetts have standing to do this? Do these states have standing to force an administrative agency to act if they're choosing not to act?

And 5-4, the Supreme Court says, yes, states have special solicitude when it comes to standing. Massachusetts' claim was that their beach could erode some micro inches every year and that that was their sovereign land that was being taken away by the Atlantic Ocean, I suppose, but because of greenhouse gas emissions. And the Supreme Court said, that's enough. Now, I don't want to like make this sound like it was some line in the sand because things have been heading this direction for some time. But if you're talking about sort of the history of how these cases happen, that's going to be what people point to when they think of the rise

of state AGs. You know, in, so I worked on John Cornyn's 2002 Senate campaign. He had been state, he'd been a state Supreme Court justice and state attorney general, Texas attorney general before then. His campaigns for attorney general had been all about how much in back child support, unpaid child support he had collected from, you know, deadbeat Texans. Yeah, that's what state AGs ran on in the 90s and the very early consumer fraud, like rigorous on protecting, you know, protection. Yes. Elder abuse. I've seen commercials for, you know, I shut down so-and-so nursing home. Yeah, exactly. Massachusetts EPA. Again, it's not what changed it, but it is the marker that it had changed where state AGs now suddenly have, again, this like gatekeeping accountability function when the opposing party is in office. And that's how then state solicitor generals

just explode across the country. Led by husband of the pod. That's right. Texas was one of the first to have a solicitor general before Massachusetts v. EPA. But again, at that point, it was like, well, we're a big state, let's have a Solicitor General. But the job itself changes dramatically at this point. That's how you end up with Ted Cruz in the job and the husband of the pod. Now, before we go further, asterisk, asterisk, husband of the pod is somehow involved

in the litigation that's going to happen next. I don't even really know how. He's not involved in it now. But I mean, he's, but I've heard about this reg for some number of years. So who knows? I tuned it out a little bit. I'm going to be honest. Yeah, no, I understand. Because I thought it was about environmental law and I was like, okay, fast forward from Massachusetts v. EPA. Oh, but let's not fast forward quite yet. Okay. So one thing about Massachusetts v. EPA was how broad was EPA's authority?

And so the Bush administration at the time said, look, when we're talking about regulating air pollutants, which is what Congress has delegated to the EPA, what we're talking about is the black stuff, the dark stuff that comes out of the chimney. And no, what the states were saying is, no, no, no, no, it's broader. It includes greenhouse gases, which are not, some of them not classically considered to be a pollutant, but because of their effect on the climate. And so the Bush administration was saying, no, we have a narrow reading of what our delegation is. And the court said, you got authority to regulate greenhouse gases as air pollutants.

So it's a – the court didn't settle what are the limits and things like that. But essentially what it did is it said, EPA, you have – it's not – it isn't the narrow construction that the Bush administration EPA wanted it to be. It's a broader construction, which is directly relevant to everything that happens next. And Massive EPA, so it's a 2007 case. The lineup's going to be exactly who you think. Stevens, Souter, Ginsburg, Breyer, and Justice Kennedy. Yes. It was very controversial at the time. And it was one of those classic 5-4s with Kennedy switching or whatever, picking sides, right?

Kennedy in the middle. And everyone knew it was going to be a big deal. This wasn't like a sleeper like, oh, and then it turns out later. Like, nope, it was thunderstruck from the moment it hit. Yeah. Okay, so 2007, right?

So Obama is elected, takes office in 2009. And one of the big things on Obama's legislative agenda, aside from Obamacare that you may not remember, was cap and trade. And so cap and trade flim flams around in Congress for a little while, but it's going to fail. And so the Obama administration is like, no problem, we'll do it ourselves. Yep. And this is, again, no problem. We'll do it ourselves. Yep. And this is, again, a theme. Congress didn't do something. That in and of itself is an action, David.

Inaction by Congress does not mean that they're delegating. Inaction by Congress means that the status quo is what they picked. Yeah. Which I know people don't like. Right. But it is how our constitutional system is set up. Even when there's a problem that Congress hasn't solved. That's right. They have chosen not to solve the problem. Now, what has happened is that then the executive branch and the administrative state really steps in and says, ah, if Congress won't solve it, we will.

And Congress knows that. And so now Congress's inaction has turned in to a delegation of sorts, but in a really dangerous way. Okay, so cap and trade doesn't work out. The Obama administration promulgates the clean power plant reg. Mm-hmm. It doesn't even so much matter what the clean Power Plant reg actually says. So I'm going to give a version that's really easy to understand that's maybe not totally accurate. I'll allow it. Okay, thank you. So instead of saying Power Plant 123, you cannot have more than 10 emissions, you cannot have more than 10 emissions.

What the Clean Power Plant reg said is, Texas, you may not have more than 30 emissions from all your power plants. You figure it out. And then the question became, this is going to be the fence line versus outside the fence line. Inside the fence line, when we're talking about this and when the court is talking about it means a reg on a specific power plant or

on specific power plants like within the power plant things the power plant can control like what their emissions are outside the fence line refers to this aggregation that it's just like in the air literally and figuratively what you're supposed to do with all the power plants. Okay, again, as I said, this is going to be how we're going to talk about it because the facts actually are not going to matter that much. So that's what the Obama administration does. Lawsuits galore.

Yes. Right? Flim-flamming in courts. The Supreme Court, in one of the last opinions that justice scalia writes uh stays it then the trump administration comes in relying on that stay they ditch clean power plant very similar by the way to arizona versus san franc. And then they put out an ACE rule. I forget what ACE stands for, but it's Clean Power Plant Part Two, but it's not Clean Power Plants. It's kind of the opposite. Affordable Clean Energy Rule. There we go. Yes. I love all these names. Who can be against them?

I'm not against clean power, but I'm not against affordable clean energy. How do I decide between clean power and affordable clean energy? More lawsuits. Yes. Right. In this case, it goes to the D.C. Circuit and the two to one opinion. The D.C. Circuit does something kind of bizarre on the merits. They say that the ace rule is unlawful.

And the Trump, that's the trump one the trump one and they imply or maybe say that you have to go back to the clean power plant rule and that is going to be a merits question here of what exactly the dc circuit said about that and in the meantime everything is stayed yep now on the ground the majority of states have accidentally or otherwise met the standards in the clean power plant rule. So right off the bat, we have a standing problem. The D.C. Circuit stayed its opinion. So the administration is not being forced to do anything. Oh, and there's another factor that Biden's administration has basically said, we're not going to go with either of these. That's right.

We want to go with option C. We won't tell you what option C is. Yeah. Maybe it will be the affordable clean. No way. Anyway, I bet clean is in there. I bet it is. Yeah.

So they've promised not to go back to clean power plant. They're certainly not going to go back to ACE. They said they're going to do something but we don't know what yet um the dc circuit opinion has stayed so the states don't have to follow it also most of the states have already come under it under the uh the emissions so do they have standing to sue is this a moot case is there an actual injury that the supreme court can redress so that was issue one in the case we'll get to that and it will that will have some real impact on mootness law and again some of these like court nationwide injunctiony things that happen people will be

citing that aspect of it but two and y'all are going to recognize this from osha from the vaccine mandate case major questions doctrine nobody is contesting that congress could have delegated this power to the epa but they are contesting whether congress did delegate this power to the epa and so a lot of conversation in the oral argument about the difference between non-delegation doctrine, major question doctrine, whether there has to be ambiguity or whether it just sits above

and you have to ask whether Congress delegated it, even if it's clear. And that is the part of this case that I think will have huge effect if they say that the states win, because it will mean that Congress might actually not be able to rely on the administrative state fixing every national problem that they're unwilling to fix. And frankly, if the Supreme Court could wave a wand and say, from now on, the administrative agencies are going to be really,

really cabined in. Major question doctrine just took steroids. It's what was Sammy Sosa before and after? Barry Bonds. Barry Bonds before and after. That was the one I was thinking of. Sorry. A lot thicker neck. And yeah, major question doctrine is about to have a 25-inch neck. Yeah. So, and I want to pause here because I think it's really important to explain this as clearly as possible because as clearly as possible, because this is a funny story. So I'm here in DC, had meetings until pretty late last night. And then I'm sitting in a restaurant in the hotel and I'm doing some work.

And somebody comes up to me and says, are you David French? I was like, yeah. That's who's asking. And that's always sort of a dangerous entree, what's going to happen next. And he said, I love advisory opinions so much, and I understand half of it. So it's so honestly, same here. Yeah, exactly. So this is for you.

Let's make this super, super basic. And the super basic part of this is how how, two questions. One, can Congress punt to the presidency to make a decision? That's non-delegation. Can it punt? And then another one is, did it punt? And this is a did it punt kind of case. And a lot of people, depending on who's president, want Congress to punt or want it to be held that Congress punted.

Why is that? Well, one of the reasons why that is, is that there is some sort of, let's just say sort of philosophically, there is a notion that, well, an executive can move more quickly and decisively than a legislature. But that's not the system that was created. That was not the system that was created by our founders, which, as we've talked about many times, is not co-equal branches of government. If you're looking at the Constitution,

Congress is supposed to be supreme. So there's this philosophical notion that says, hey, look, a strong executive is just more nimble, faster, they can respond to events. You want this big administrative state. And then there's this kind of practical issue here where members of Congress don't actually want to make hard calls. Why would they? Because think about it. Legislating involves compromise. Yeah. You have like any, even if you have a Democratic controlled Senate, as we see now, it's still going to involve compromise. And if you compromise, you're opening yourself up from either end to a

primary, from your left flank or your right flank, if you've compromised at all. So in an ideal world, you don't do any of that. You let the administrative agency do it. And then you get to criticize the administrative agency about how you would have done something totally way better on either end of the spectrum. Exactly. And nailed it. You've nailed your campaign. So I have a question for you, Sarah. So this is a zooming out. Let's make this concrete. All right. So as everyone knows, I'm the oldest dispatcher. So I can say back in my day.

So back in my day, when a member... This is something Old Yeller would say. Yeah. Old Yeller would just, no. Old Yeller isn't that coherent. So back in my day, if you were running for national office and you were a member of Congress, say you were a senior leader in the House or you were in the Senate, one of your biggest issues was you had all of these compromise votes in your past.

And so you could get hit from all sides, just like you said. But what I've noticed now is that it seems as if a senator might have some advantages over a governor now in running because they don't have compromise votes anymore. That's why we're seeing presidential candidates, far more senators than governors for exactly that reason. But you know what, David, not to go off on this tangent, but i do have this like you know secondary expertise in campaigning and politics not a tangent um uh again this is a little like the crime thing there's a whole lot of causes and it's hard to say what percentage is attributable to what

cause however uh you know i was really in favor of campaign finance reform, like I said, and then it turned out there were all these unintended consequences, which made me quite Burkean from that point forward. Yeah. You don't mess with something unless you kind of know what the consequences, all of them, the unintended ones are going to be. You know, when it comes to this problem, earmarks. So yes, you would take all these these compromised votes but what you would run on

is look at what i brought back to my district back to my state when we got rid of earmarks again i fell for it again i was like yeah earmarks pork bad it's a whole bunch of wasted money yeah oh it turns out they were chesterton's fence was doing. And I shouldn't have assumed it wasn't when leadership in the parties felt very squeamish about getting rid of earmarks, even though they, by and large, weren't doing most of the earmarking. Why would they be in favor of all this waste for their members? It turns out because it was allowing their members to take hard votes on compromise bills to then, you know, build a hospital, build a road, fix a bridge, things they could run on. Now, so again, I don't know exactly what percentage I would attribute to it. Obviously, not all of it. There's a whole bunch of other stuff going on. I blame campaign finance reform

for large chunks of it. But unfortunately, getting rid of earmarks has directly affected the ability of these members to compromise, sadly. I'm so glad you brought that up. I'm so glad you brought that up because I was right there with you. Earmarks, pork, gross, come on, bad. And why are we always having like, here's the, you know, the Bill Johnson wing of the hospital. And so it's like, you know, if you have a congressman named Bill Johnson. So it's just a constant campaign ad. It's solidifying incumbency. It's like, you know, everything in West Virginia being named after a bird. Yeah, literally everything. Oh, it's amazing. So you're thinking pork and waste. And then you realize, wait a minute, now what incentive do I have to compromise? And it's complicated.

A lot of it, you know, so I'm in much more bright red or bright blue districts where compromise is going to be discouraged anyway. But you have really removed from people the incentive. And you can go back and say, look at this hospital wing. Look at this new branch of the interstate, look at this, look at that. Because you'd get whacked, by the way, from the middle. So I did opposition research as a job for a while.

And I did 35 statehouse races in Texas in 2011 or so. And one of the things that I could do is no matter which way you voted on that bill, I could whack you for it. Yeah, that's my job for what it's worth. It's actually a really fun job. So if you compromise, I'm going to whack you for not, you know, fighting for whatever value. But if you didn't compromise and there was some log rolling involved, then by the way, you refused to support a bill that would have built a new hospital in your district. And so that's why they were sort of pressured into that compromise, because right now they can only get hit from the flank. Yeah. But before, when they turned down the hospital, you could get hit from the center.

So-and-so refused to vote for this bill that would have built a hospital for our district all over some extreme principle. And that fear of getting whacked from the middle or the flank meant that they stayed where they are. That district stayed where it is. The members stayed where they are. If you can only get hit from the flank,

you're going to get pushed to the flank. Yeah, exactly. Well, that was a fun digression're going to get pushed to the flank. Yeah, exactly. Well, that was a fun digression. Fun cul-de-sac. Yeah, absolutely. We're back where we started. We're back on the road. So let's go to the oral argument because I want to leave time for – I got an interesting text right as we started.

I have a cultural question for you, Sarah. Oh, interesting. Based on a study about sexism in video gaming. Oh, God. Okay. So anyway. Oral argument was really interesting. You have on the just that mootness question, you have Justice Alito sort of asking, I think, the line that will be remembered, which is, have we ever held that a stay from a court can be the basis for mootness. Right. And the answer is clearly no. And Solicitor General Prelogger, who, again, I've praised to high heaven on this podcast for her abilities.

It's like the one time I think you sort of saw her go like, well, if you look, look over there, squirrel. Yeah. Because there wasn't a good answer. because there wasn't a good answer uh now on the so a lot of people were concerned that this would get punted on some procedural jurisdictional mootnessy thing it's a it's not a great case for the court in that sense but i do think they will say something about a court stay is not going to create mootness now the problem is right where's the actual injury and remember as i said like the majority of states of course uh have already gotten under the clean power plant things and so the argument from the government is those remaining few states would very easily

be able to trade with other states cap and trade that didn't pass in the first place right and the question is okay but is that an injury based on massachusetts v epa it clearly is if a quarter inch off your beach we're gonna give standing to yeah and that under that special solicitude that we give to states to sue then surely having to pick up the phone to call another state and do something to get that trade right it's not gonna be free free yeah um surely that's an injury so i think overall at the oral argument to me at least i thought we got over that initial hurdle and then on the merits man um justice soda mayor she filibustered there for a while.

And as others have pointed out, when you filibuster for that long and you're a Supreme Court justice who has to know every legal issue in the country and environmental law is both hard and frankly boring, sorry. Unless it's dealing with owls, then I find it really interesting. You know, she got some of the facts wrong at one point. She's like, it didn't go great on that. Kagan and Breyer are right there too. You barely hear from some of the conservative justices until this was a two hour argument. You're hours in before you hear from them, really. But look, I think there's a decent chance this is a 6-3 case. Yeah. Yeah. It's screaming 6-3 to me. It's screaming. And I think

if you're going to look at a trend, I mean, major questions is that major questions doctrine is getting its steroid injection as we speak. It's in the weight room. It's got gains. It's getting strong, a lot of gains. And I think you're going to have think the six three the six will be um you know flirting with showing some ankle to maybe maybe we showed ankle in osha so maybe we're like up to the knee on this date with major questions doctrine and then you're gonna have gorsuch going full monty in a concurrence gorsuch has taken home major questions doctrines at night. Getting major questions doctrines drunk.

So we just We never get to see legendary producer Caleb's face. My impression is that he just rolls his eyes at everything we say, but he's laughing. I actually got a laugh. And we just shifted our metaphors. We did.

But I agree with you. I think that we're going to see this is one of the areas where the court is moving towards making Congress do its job. And I think that's good for us overall. I mean, there might be some real pain as we sort of see problems unfold in our society, in our culture that no longer can the president sort of wave a magic wand and try to fix or put band-aids on. And Congress still doesn't do their job because they don't know they need to. Exactly. So we might go through some more pain before we see Congress move. But at some point, you got to make the constitutional structure work. The court already put their thumb on the scale for the administrative state.

Yeah. So this isn't like it naturally happened this way. The court said the administrative state could do all these things, and they didn't realize that that would mean Congress wasn't going to do its job anymore. One thing, though, you said this is good news for us. And I just wanted to define us for a second. I think it's good news for you and I for this podcast because we'll have a fun opinion to talk about yeah i think it's good news for the country and the system of self-government because you want to get back to that original

three-legged stool structure of checks and balances and then federalism with the states but here's who actually i think i'm going to write this by the way. I think that us could easily be defined as climate change activists who think they're going to lose. They think that losing this case means that they're on the losing side of it. They're not. Because if you actually, there's a lot of problems where I'd say like, yep, you lost, that sucks. You know, the OSHA vaccine mandate is a good example of that. Like, meh, if you were pro-vaccine mandate, you just lost. I can't come up with a really good silver lining for you.

But this isn't even a silver lining. I actually think if you truly care about climate change and climate change policy, you're very different than a lot of other public policy problems because climate change can't, climate change solutions rather, can't keep flipping back every four years. Climate change is a 50-year problem that needs a 50-year strategy

that has to start now and has to be incremental to actually get it done. If you keep flim-flamming back and forth, you're actually never going to reach that 50-year strategy. The only thing that can make a 50-year strategy happen is Congress. The administrative state, even under presidents of same parties as we've seen, right? The Biden administration says they're not going to redo the Obama administration version. And then the Trump administration doing, like, you need one strategy and it can only be set by congress now your problem so far has been that congress won't do it they didn't do cap and trade but if you care about this issue what you want is for the court to say hey congress the epa will not cannot bail

you out anymore and so that will actually give you pressure points to push congress to make that fifty-year strategy get it done and have a consistent concept of how we're going to deal with the public sorry that that natural disasters they're gonna faggot people's homes uh... you know lower-income people being more affected by simply that's what congress does well not the look, if you care about

climate change, I really, really think you should think twice about saying that this is a loss. I actually think it's a win. I think that's a really good point. And I also think the one last point before I have a gamer question for you. So one thing that I think is really important is we have to deescalate these presidential races. Because if Congress isn't working, that means everything falls on the president. And so what we're ending up doing, I know we- And the Supreme Court, which is then picked by the president.

Picked by the president. So what we end up doing is, you know, we have this thing that you have every four, the most important presidential election of our lifetime. That's something you can know mainly in hindsight. But here's what is actually happening as the administrative state grows. It is you're continually electing the most powerful peacetime president of our lifetimes, which raises the stakes dramatically. And then the other thing that's such a tension here, Sarah, most of us

don't cast a meaningful vote for the president. I live in a very red state. I think Trump won by 21 points. I could, you know, the idea that I had something meaningful to say about the outcome of the presidential election is laughable. And in fact, I've never lived in a swing state in a presidential contest in my life. I've either been in a deep blue state or a deep red state. And most of us then end up living in states where you don't cast a meaningful vote for the most powerful branch of government. And that creates frustration. It creates tension. It's part of the reason for such hysteria surrounding these presidential elections.

But if I actually get a meaningful vote for the most powerful branch, which is the legislature, it's de-escalating those presidential races. And we need de-escalation in these presidential races. We absolutely do. And so that's my last tangent. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories

and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura

has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, hit me with your gamer problem. Okay. This is male behavior towards female gamers yep we know it's a problem so I'm gonna give you the what does what a study found and this is studying players of Halo 3 so this is a yeah a little bit back in the day lower skilled male players of Halo 3 were more hostile towards teammates with a female voice, but behaved more submissively to players with a male voice. Higher skilled male players, on the other hand, behaved more positively towards female players. Okay, I just, what is your hypothesis as to why that is the case? And I'll tell you what the authors argued.

Evolutionary biology is the hypothesis I would apply to this. That is exactly, the authors argued the male hostility towards female gamers in terms of evolutionary psychology, writing, quote, female initiated disruption of a male hierarchy incites hostile behavior from poor performing males who stand to lose the most status. Yep, and the high-performing males, I mean, literally you see this in any pack of animals, right? The highest-performing male that's going to be able to mate with the most number of females has no problem with all the females being around because he's going to get to mate with all of them. all the females being around because he's going to get to mate with all of them the males that are too juvenile to be able to take on the alpha male or the males that are simply not strong enough they're the ones who are fighting amongst each other to increase status and so they don't want

the females around yet because they have not increased their status enough now again i'm not talking about humans right right but if you i mean i've never seen something as clear as what we see in animal behavior and evolutionary biology um in a male human form but again you go back through uh human evolution and while we don't know everything about it um there is certainly some evidence that humans and look we have some evidence even in cultures right of harem type cultures of top status males being able to mate with more females of top status males Genghis Khan being an interesting example leaving more progeny which of course is the goal of evolution right to pass on your genes as many times as possible. I'm sure Genghis Khan's men were far less pleasant toward women than Genghis Khan was.

That is fascinating. It's so funny that you went immediately to the exact... Of course. Everything for me goes into evolutionary biology terms, though. Like, honestly, everything can be explained by our little lizard brains. Yeah. Yeah. When I read that, the first couple of sentences, I thought of the difference between security and insecurity. That one of the ways in which you're trying to attain status is by tearing down somebody else. And you're going to tear down what you think of as your closest rival. And you're not going to take on the people that you believe that you can't defeat. Whereas the person who has the sort of unquestioned status is quite secure.

It's quite happy to be magnanimous in their treatment of others, particularly if you're a guy, you're quite happy to be nice to women. It's easy to be nice when you're on top. Yeah, yeah. And that's also just like a true thing in life, school, sports, friends. Yeah, especially when people are trying to seek your favor. It's sort of your point about you don't know your values until they're tested. It's easy to be nice when you're on top.

You don't actually know if you're a nice person unless you're not on top. Yeah, yeah, that's a good point. That's a good point. Okay. Wow. I was going to be so fascinated to hear your answer to that question. I just want to make a quick point to all of our AO listeners. I've gotten so many wonderfully kind responses to our last podcast, and I just want to thank you all. And I really did think about talking about it at the time i did tell david and um the problem was and maybe this will be helpful to someone out there i thought miscarriages were like television where you know like going to the bathroom at work one day and you see some blood you're like oh no super sad and you like sit home with some ice cream and like

by monday everything is fine and you go about your life and that is just at least it was not for me the reality of what this was it was a process it was six weeks of constant doctor's visits and then even after that you don't feel quite right and like just physically it was long and so I was like you know what I'll talk about this when like sort of my health is in the clear when I'm sort of in a better place and it just that took so long yeah so I was like, you know what? I'll talk about this when like sort of my health is in the clear, when I'm sort of in a better place. And it just that took so long. Yeah. And I was like, well, now it's awkward. So anyway, that's all to say thank you. You you more than you exceeded even my very, very high expectations for the kindness of AO listeners. And even on Twitter. My goodness. People were so nice. People were nice.

Twitter of all places. So that's all to say. I just wanted to say thank you. Well, and I would say thank you for sharing that because I think bringing the honesty of your experience into this incredibly contentious world, it grounds it all. And it makes it real in a way

that I think helps people understand. But it takes some courage to do it. You're opening yourself up. It's not inevitable that Twitter is going to be nice to you. I mean, that's newsflash. There's still time. Yeah, it's not inevitable that people are going to be nice when you open yourself up. So I appreciate you taking the risk to open yourself up. And thank you, Dispatch listeners, for coming through and commenters the way we know that

you can. So I appreciate it. Well, awesome possum. All right. Well, in-person advisory opinions is concluded. In the books. That's right. Caleb, how'd we do?

All right. We got a thumbs up. We got a thumbs up. books. Caleb, how'd we do? All right. We got a thumbs up. We got a thumbs up. So again, please rate us on wherever you're listening to our podcast. Please subscribe. Please check out thedispatch.com and we'll be back on Monday. Bye.