COS Can Promote SCOTUS Uniformity?
"Laws must be clear, precise, and uniform for all citizens". - Marquis de Lafayette
SCOTUS disappointment
Back in October of 2023 the Supreme Court of the United States (SCOTUS) declined to hear arguments from a group of 12 states (State of Missouri, et al. v. Joseph R. Biden) contesting the validity of an executive order (EO) establishing social costs from greenhouse gases. Two years earlier SCOTUS had found for West Virginia in its objection to EPA’s Clean Power Plan.
Both cases involve states rights against executive overreach and request court relief from expected economic damages. The similarity ends there however.
In WV v. EPA the court invoked the “major questions doctrine” and determined that EPA’s regulatory regime would have significant economic impact and required Congressional approval. For Missouri v. Biden, SCOTUS declined to accept the case due to a “lack of standing”. Note that the denial by SCOTUS was given without explanation.
Legal limbo
The opening quotation from the Marquis de Lafayette was a foremost concern in the minds of our Constitutional framers. If the law is not “clear, precise and uniform” then it is of little use and will be abused/ignored. SCOTUS had a clear “major questions doctrine” precedent to justify hearing Missouri v. Biden but left the nation confused by declining without explanation.
Missouri could have provided stark clarity on separation of powers. Instead SCOTUS once again used “lack of standing” to avoid clarifying a contentious issue (2020 Election). Why? Was it because WV targeted an executive agency while Missouri was aimed at an EO? We are left guessing because of a lack of “uniform” case acceptance criteria.
How to promote uniformity
There are two approaches to promoting uniform case criteria. The first involves resolving a landmark SCOTUS ruling from 1984. The second requires amending the United States Constitution. Each has its own benefits and downsides.
Approach One: Revisit Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron)
In the 1984 Chevron ruling, SCOTUS allowed executive agencies to construct regulatory law if underlying statutes from congress are ambiguous. Over the last 40 years the “ambiguity” of this ruling has been used by executive branch agencies to bypass congress and the judiciary.
SCOTUS has agreed to hear two cases in conjunction that directly challenge regulatory overreach under Chevron. In effect SCOTUS can rescind the tools of regulatory overreach while promoting uniformity of criteria.
Benefit: SCOTUS can mandate that ambiguous law require congressional clarification rather than allow agency interpretation. This can be decided in 2024 and stop executive overreach overnight.
Downside: SCOTUS rulings may be overturned by subsequent courts. They are not necessarily permanent.
Approach Two: Article V Convention of States
The issue of “standing” and its possible use/misuse regarding states rights can be made moot through use of an Article V Convention of States. During the Simulated Article V Convention of August 2023, it was proposed that the several states be empowered with guaranteed standing.
Federal Term Limits & Judicial Jurisdiction (Proposal 2, Section 2) and Federal Legislative & Executive Jurisdiction (Proposal 2, Sections 1 through 4) clearly reserve states rights before the court as proposed Constitutional Amendments.
Benefit: The successful passage of these amendments would be both irrevocable and straightforward. SCOTUS will no longer have wiggle room for deciding “standing” in case criteria.
Downside: Much damage has already occurred under non-uniform application of SCOTUS case criteria. An Article V convention will require significant time to achieve.
The Hope
The best case scenario for reconciling SCOTUS’ non-uniform application of case criteria would be for a successful rewrite/revocation of Chevron (temporarily hold the line on executive overreach) while the COS applications work their way towards the required 34 states to accomplish a permanent resolution.
If you believe that each state has a right to present its concerns before the highest court in the land please sign the COS petition and help speed the Article V process along to make it a reality.
