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War on Women

Summer Sequels and Coming Attractions

by: tmess2

Mon May 26, 2014 at 17:13:20 PM EDT

Everybody loves a good sequel.  Hollywood and the publishing industry love sequels and have the formula down to a science.

The Supreme Court appears to love a good sequel too.  In twenty-eight years since the Supreme Court made it more difficult to discriminate in jury selection, they have taken up almost twenty cases to fill out the details of how that new rule would work in practice.  Similarly, almost ten years ago, the Supreme Court decided to return to the original rules on when an out-of-court statement violates a defendant's right to confront witnesses.  Over the past ten years, the Supreme Court has heard six cases (and will probably add a seventh case for next term) to figure out how those rules apply to the modern criminal justice system.

Among the cases left on the docket are two very big sequels -- both of which are likely to become major issues in the fall races.

The first of the two is the Employer Mandate cases dealing with the requirement that the insurance policies available to employees must include coverage for contraceptives (a sequel to the 2012 decision upholding the Affordable Care Act).  Especially, as seem likely, if the Supreme Court decides this case by applying the Religious Freedom Restoration Act rather than the Free Exercise Clause, the decision will be an easy weapon for both sides in the fall races.  If the employees and the U.S. government win, the decision becomes Exhibit A in the fictional "War on Religion" that Faux News tries to push.  If the businesses win (especially if it is the five Republican appointees against the four Democratic appointees), it is another example of the Republican War on Women (which is less a war than the indifference of Republicans to the difficulties that women face).

The more interesting case is the Climate Change cases.  Back in 2007, the Supreme Court found that the Bush administration was not following the Clean Air Act by ignoring the impact of carbon dioxide and other greenhouse gases on climate change.  Since then, the Supreme Court in a first sequel ruled that any regulation had to be through the Clean Air Act, not through a common law nuisance action.  Now, in the second sequel, the Supreme Court is examining part of the regulations -- particular the part that impacts power plants and coal.

Since the first ruling, the Republicans have tried to push the meme of a war on coal.  This fall, two key Senate races (West Virginia and Kentucky) will take place in states with a significant coal industry.  How, the Supreme Court determines the Climate Change cases could have a potential impact on these races.  The exact issue in the current case is whether the regulations adopted by the EPA are justified by the Clean Air Act -- specifically whether the finding that carbon dioxide (and related gases) are a pollutant for the purposes of regulating cars also means that they are a pollutant for the purposes of power plants.

There are three possible results in this case.  First, the Supreme Court could find that the EPA is correctly applying the Clean Air Act, and that, if anything, it has cut industry a break by phasing in the new regulations.  Second, it could find that the EPA, while not compelled to go as far as it has, is still reasonably interpreting the statute.  Finally, it could find in one or more ways that the EPA has departed from the statutory language. 

From the point of view of the Democratic candidates in Kentucky and West Virginia (both state officials), the best possible result is the first option -- a holding that the EPA is merely doing what the Supreme Court ordered back in 2007.  In this scenario, there is an argument that the EPA has had no choice or discretion in the matter and that the problem is not that the EPA is anti-coal but that the current law is anti-coal.   In this argument, while it probably was not possible to completely prevent some negative impact on the coal industry, there have been proposed amendments to the Clean Air Act that might have postponed the worst of the impact and given the coal industry time to adjust -- amendments that went nowhere largely because Mitch McConnell blocked them in the Senate (and Shelley Capito joined with her fellow Republicans to oppose them in the House).  The question for the fall is whether Democrats in coal states can convince the voters that Republican obstruction of moderate compromise on the Clean Air Act is the equivalent of Nero fiddling while Rome burned.  Control of the Senate may turn on this issue. 

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