January 26, 2017
PAYIN' THE COST TO BE THE BAAS:
How Antonin Scalia's Ghost Could Block Donald Trump's Wall (DANIEL HEMEL, JONATHAN MASUR and ERIC POSNERJAN. 25, 2017, NY Times)
[I]n one of his last opinions, Justice Scalia supplied a powerful weapon to resist Mr. Trump's plans for a border wall.Justice Scalia's June 2015 opinion in Michigan v. Environmental Protection Agency may not seem helpful at first sight. It blocked an E.P.A. rule that would have limited mercury emissions from power plants. The Clean Air Act instructs the E.P.A. to issue "appropriate and necessary" regulations, and Justice Scalia said that language required the E.P.A. to consider the costs of its proposed rules, which it did not properly do. "No regulation is 'appropriate' if it does significantly more harm than good," Justice Scalia wrote. And even though the final vote in the case was 5-4, all nine members of the court agreed that the E.P.A. could not ignore the costs of its actions when deciding whether or how stringently to regulate.Why is Justice Scalia's opinion an obstacle to President Trump's wall-building plans? Mr. Trump is reported to be planning to rely on a law called the Secure Fence Act of 2006 as a source of statutory authority for the wall -- apparently to avoid asking Congress to pass a new statute, which could be filibustered by Senate Democrats.But the 2006 law authorizes the secretary of homeland security only to take actions to secure the border that are "necessary and appropriate." These are the same words (in the opposite order) the Supreme Court interpreted in Michigan v. E.P.A. As Justice Scalia said, it would not be "appropriate" to "impose billions of dollars in economic costs in return for a few dollars" in benefits.
Posted by Orrin Judd at January 26, 2017 4:20 PM