Kagan Turns Conservative Justices’ Recent Love Affair With History Against Them In EPA Case

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Justice Elena Kagan, in a sly section of a searing dissent, uses historical antecedents to prove that Congress has always delegated broad power to agencies. 

She’s turning a favored tactic of the conservative majority on its head. In recent major cases — one nixing the constitutional right to an abortion, and one ripping down a 100-year-old New York gun licensing law — the right-wing justices have spent most of their decisions looking backwards. 

In the gun case, Justice Clarence Thomas claimed that there is no historical analogue to New York’s law, and thus no basis on which it can stand. Modern concerns — say, a government’s heightened interest in protecting its citizens amid a scourge of gun violence — don’t matter sans historical backing, he argued. 

Justice Samuel Alito, writing the lead in the abortion decision, spends pages saying that there wasn’t a right to abortion in the country’s earliest days (no matter that women were considered far less than full citizens then), so there shouldn’t be one now. 

The liberals in both cases heartily dissented, pointing out the foolishness in using 18th and 19th century law to determine modern constitutional rights. 

In Thursday’s decision about the power vested by Congress in the EPA to regulate power plant emissions, Kagan takes a leaf out of the majority’s book.

“The kind of agency delegations at issue here go all the way back to this Nation’s founding,” she writes. “The records of the Constitutional Convention, the ratification debates, the Federalist — none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice.”

“The very first Congress gave sweeping authority to the Executive Branch to resolve some of the day’s most pressing problems,” she writes, naming among them “Indian affairs” and “the federal courts.” 

The passage, while brief, fits hand-in-hand with her blistering criticism of the majority’s sometimes-textualism. 

“The current Court is textualist only when being so suits it,” she writes. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”

So too with historical references, she seems to argue. 

The Court has rooted all of its recent majority opinions in a mishmash of historical proof, which the dissenting liberals pointed out as cherry-picked, just plain bad history. Indeed, the conservatives have prioritized historical antecedents as the key factor in its decisions, sweeping aside modern considerations. 

But this time, when the history is even less friendly to the Court’s aims, the majority ignores it. Kagan does not let the change in tack pass by unchecked. 

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