No AG Weiser, SCOTUS is not aggressive, the pendulum is just swinging back to center. AQCC "Colorado Clean Car" rules don't mean they're coming for your car, they'll just be narrow your options.
In response to our Attorney General...
I came across the AG's prepared remarks concerning the legal landscape after the US Supreme Court's Dobb's decision (the one that removed a national right to abortion). They are linked first below.
I wanted to touch quickly on a theme I picked up in his remarks, one I've seen from him in other contexts as well. It is, I believe, summed up well in the quote you see in screenshot 1.
His quote along with other, similar remarks which characterize the current US Supreme Court as "aggressive" (among other adjectives--see, for example, the press release linked second below and the CPR interview linked third), paint the picture of a rogue bunch of thoughtless black robes tear-assing across the landscape leaving confusion and problems in their wake.
I'm sure that to someone who has spent his career advocating for a particular vision of how this country looks, it has to be disappointing to see what you saw as progress be notched back.
As someone who has spent most of his life, however, being disappointed as he saw his rights continually being eroded and saw the structure and function of government being rewritten by unelected judges, I can tell you I both celebrate the current court's decisions and I sympathize with Mr. Weiser's evident frustrations.
The, I hope, wiser part of me looks at both of these perspectives and has a view of his own. He tells me that he can't help but see that this is perhaps how things OUGHT to run. That, in the absence of unattainable perfection and complete unanimity among every American, the best we can hope for is movement around the center.
Let me take a small detour. Bear with me. When you set your oven to 350 degrees to bake a cake, your oven doesn't hit 350 and level off staying there until you turn it off.
Ovens are pretty simple things. The heating element is on or its off. One consequence of this is that the oven actually "orbits" around 350 degrees.** See screenshot 2 attached. This is roughly what a Temp vs. time graph would look.
I think that a graph of policy vs. time would have a similar shape. That is, my theory on policy is that we're (for a variety of reasons) always "orbiting" around centrist values, and it's okay if we are. The cake gets baked just fine despite straying from the setpoint.
This country was ripe for a correction from the court. A correction that took us back closer to the Constitution and back to protecting the freedom of the individual against the power of the government. It's not aggressive, at least not to people who are closer to the center and who realize that it's healthy to have older opinions revisited and re-viewed.
Putting aside the irony dripping out of the quote I attached in screenshot 3 (that of the current court " ... ignor[ing] the harmful consequences of its decisions" -- that, Mr. Weiser, is why justices are appointed for life), the idea that the court's decisions could have life-altering, economy-altering, world-shattering effects has ALWAYS been with us.
For example, do you think that suddenly forcing a nationwide right to abortion when there was none was accompanied by clouds parting, beams of light pouring down and people joining hands to celebrate what was revealed by God's will?
No. That didn't happen then. There was upheaval then as there is now. It was just upheaval prior to our current memory. Until now, the decisions went Weiser's way and thus he sees unnecessary chaos where someone who felt things were too far tilted sees a necessary correction.
As I have written in other posts, Democracy is messy. It's slow. It runs best on tension. Deciding how much a majority should be able to dictate to an individual is a process that needs continual re-evaluation.
I'm sure we could have things run smoother if one or another party or one or another ideology could grab hold of power and keep it forever, molding things in their own image.
I ask you how those that disagree with that sort of governance would like it. Would they enjoy the efficiency and stability as recompense for a loss of their liberty and their voice? Ask any Republican or conservative Coloradan how they like it after 4 years of efficiency and progress as Democrats define it.
No, Mr. Weiser, things are supposed to run like this. Thoughtless unanimity and never revisiting earlier decisions is not how things should be run. Our system is supposed to move around the center and it is liable to shocks from time to time as corrections are made. That's the price we pay for government that better reflects us all.
I don't know about you, but I wouldn't have it any other way.
**Already researching and working on a post about this very topic and so called "modulating boilers"--existing gas-fired technology that reduces fuel use and !gasp! carbon emissions.
https://coag.gov/blog-post/dobbs-and-its-aftermath-10-17-2023/
https://coag.gov/press-releases/6-30-22/
https://www.cpr.org/2022/07/11/colorados-attorney-general-vows-to-protect-abortion-access-gun-laws/
Have recent US Supreme Court rulings been "aggressive" and "destabilizing" as AG Weiser has it? An example to share.
In the previous post I responded to AG Weiser's remarks on recent big changes to common law thanks to US Supreme Court rulings.
I thought an example of said rulings and how this plays out in the legal landscape, an example of how this looks in practice, would be helpful. That is, I thought some context might give you an idea of how a change in high court rulings plays out.
The first link below is a motion made by Superior, CO; Louisville, CO; and both the City and County of Boulder CO asking for summary judgement** in the lawsuit against their "assault weapons" ban: the defendants here allege that the need and legal basis for such bans is so manifest as to not need a trial.
Recent Supreme Court rulings on the 2nd Amendment have been variously seen as either the hammer that will be used to pound down all forms of gun control to an open door allowing for a free for all on guns (Weiser, I'm looking in your direction on this one).
Neither is true. Reality, as I've said multiple times, is much more complicated.
To see what I mean, let's take a step back. Remember that the United States operates in a common law tradition; judges flesh out details in law as they make rulings (precedents) and other courts follow those rulings in novel cases.
As such, one way to view the Supreme Court is to see it as the ultimate precedent setter. To oversimplify things, Supreme Court rulings is to provide a framework that lower courts in this country are to use in making their decisions.
The oft-cited (lamented?) Bruen decision offered a new paradigm on how to decide gun control cases. To get a sense of the "test" that it lays out, see screenshots 1 and 2 from the motion below.
This is the "aggressive" and "destabilizing" court.
The court changed the test, and, in doing so, they allowed for challenges to laws that wouldn't have been worth trying under the old test. As such, it's driven some new activity in the courts that may not have been there previously.
That is, a group that would have put their chances of successfully challenging a gun regulation at 20% win 80% lose might reassess their odds as the opposite and run it up the flagpole.
Further, the ruling (for better or worse depending on your perspective) changed the WHO in the situation: it's now the government's job to justify their policy as opposed to a gun rights group trying to say why it's unreasonable.
Hardly chaos. Hardly a rudderless wandering as Weiser has it. Perhaps aggressive in the sense that the rules changed in a way he doesn't like, but hardly a rending of the fabric of the nation.
What we have is a series of groups who, now that the rules have adjusted in the game, will do what you see in the motion for summary judgement. They will (plaintiffs and defendants both) change their strategies, eventually settling on ones that have shown themselves over time to be fruitful.
**A motion for a summary judgement says, in wiggly layman's terms, essentially that there is no need for a trial since the facts are so obvious as to make any ruling already known. Imagine a case where I got sued because I claimed the sky was blue. I would make a motion for summary judgement because the sky is so obviously blue that no argument need be decided. More in the second link below if you want it.
https://storage.courtlistener.com/recap/gov.uscourts.cod.218964/gov.uscourts.cod.218964.78.0.pdf
https://pro.bloomberglaw.com/brief/how-to-file-a-motion-for-summary-judgment/
Related:
The Sun article linked below offers a wonderfully clear example of a lower court applying a test that the Supreme Court has laid out to weigh competing interests.
When the government regulates activity that falls under the rubric of religious activity, there is an especially high standard set by the US Supreme Court.
The Democrats that run this state decided to single out one particular kind of activity to make it illegal, an activity that many regarded as something they must do as a religious obligation.
As such, and since they didn't broaden the law while at the same time saying they were specifically targeting this one activity, the "strict scrutiny" test obviously applies and the Democrats lost.
This is one of a whole string of court cases that the Democrats running this state have lost.
As I mentioned once in a different post about the courts and AG Weiser, if (to paraphrase RBG) the courts' job is to "have a conversation" with the other branches of the government, what do you suppose they're saying to the Colorado Democrats?
And more importantly, will they listen?
https://coloradosun.com/2023/10/22/judge-blocks-colorado-abortion-pill-reversal/
No, they're not going to ban internal combustion cars, but the Air Quality Control Commission's (AQCC) recent move to adopt the "Colorado Clean Cars" standard (see the first screenshot and/or link below) leaves me with a couple questions.
1. If you restrict the choices people can make is there a substantive difference in the outcome?
2. As suggested by the quote in the second screenshot, from the second link below, if people don't buy the EV's that the AQCC requires dealers to try and sell, what then?
The AQCC recently passed yet another series of rules, this time requiring manufacturers to increase sales of hybrid, EV, and fuel-cell (hydrogen powered basically) starting in 2027, culminating in a requirement that 82% of the light-duty trucks and passenger vehicles sold in the model year 2032 should be electric or zero-emission.
As we have seen from the AQCC (and in other arenas--COVID regulations against restaurants is another example), they can't control individuals and their choices, so they go after the easier-to-regulate businesses: if you can't be forced into buying an EV, they'll just remove your ability to buy otherwise or raise the difficulty to do so.
A backdoor approach at banning gas-powered cars that allows them to make the claim in screenshot 1.
That leaves me wondering, as I often wondered during COVID, what if people ain't buying it? I mean that literally. What if dealerships are full of EV's that few buy? What if people go out of state to buy cars?
Will we see more overt attempts to force EV ownership? Will they give up?
What answer would they have for frustrated dealerships that have stock that doesn't move?
Unelected boards should not (repeat NOT) have this much power. They should not have the ability to reach this far into the lives of Coloradans or business.
The fact that they do can be chalked up to the many consequences of arrogant, one party rule in this state.
https://cdphe.colorado.gov/coloradocleancars
https://www.cbsnews.com/colorado/news/colorado-automakers-clean-air-car-standard-electric-zero-emission-vehicles-roads-transportation-pollution-2030/?utm_source=dlvr.it&utm_medium=twitter