Justice Scalia’s final dissent

· February 14, 2016  
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"The Guardian" or "Authority of Law" statue by James Earle Frasier in front of the United States Supreme Court building in Washington, DC. Mark Fischer | Flickr

Justice Scalia’s final written dissent was in an obscure case that is only known to those in the electric power industry.  But this case, Federal Energy Regulatory Commission v. Electric Power Supply Association, is the embodiment of what is wrong with the modern court system and exemplifies Scalia’s commitment to the written law.

Without getting into the weeds of the case, the Federal Power Act [16 U.S.C. § 791] authorizes the Federal Energy Regulatory Commission (FERC) to regulate wholesale electric power market but explicitly prohibits the FERC from regulating “any other sale” of electricity.  Anything on the retail side is left to the states.  In 2011, FERC promulgated a “demand response” regulation providing for monetary incentives to large electricity consumers, such as hospitals and schools that reduce their consumption during peak usage times.  This is one of the tools in the “clean energy” cartel’s arsenal to limit the use of fossil fuels.

Obviously, the case, its ramifications, and its stakeholders is an extremely complex case study.  But the legal question was very simple.  Does FERC have the authority to promulgate such a regulation on the consumer side when statute explicitly leaves this to the states and actually prohibits FERC from stepping outside of the wholesale market?

In an opinion eerily similar to King v. Burwell, in which Chief Justice Roberts completely rewrote Obamacare’s health care subsidy scheme in order to accommodate a lawless executive agency, Justice Kagan rewrote the Federal Power Act to do the exact opposite of its intent.  Just like Obamacare was designed to only incentivized those states that establishes state exchanges, yet Roberts translated “state” into “federal,” Kagan translated “wholesale” into retail – manifestly opposite from the original intent of the statute.

At its core, the key function of the court is to apply statutes to cases and controversies, not rewrite statutes and the Constitution.  As I’ve often said before, when executive agencies violate congressional laws, it is the quintessential time for the courts to step in and do their job; namely, interpret the law as written.  Yet, in the FERC case, Roberts and Kennedy joined with the four liberals to overturn the D.C. Court of Appeals, which struck down the FERC rule, in an opinion written by the inimitable Janice Rogers Brown.

In his characteristic clarity for explaining the written law, Scalia demolished Kagan’s opinion, noting that anything that does not regulate wholesale markets is not within the authority of FERC:

While the majority would find every sale of electric energy to be within FERC’s authority to regulate unless the transaction is demonstrably a retail sale, the statute actually excludes from FERC’s jurisdiction all sales of electric energy except those that are demonstrably sales at wholesale. So what, exactly, is a “sale of electric energy at wholesale”? We need not guess, for the Act provides a definition: “a sale of electric energy to any person for resale.” §824(d) (emphasis added). No matter how many times the majority incants and italicizes the word “wholesale,” ante, at 19–20, nothing can change the fact that the vast majority of (and likely all) demand-response participants—“[a]ggregators of multiple users of electricity, as well as large-scale individual users like factories or big-box stores,” ante,at 7—do not resell electric energy; they consume it themselves. FERC’s own definition of demand response is aimed at energy consumers, not resellers. 

Scalia went on to use the majority’s own examples against their conclusion.  The bottom line in this case and in every case of statutory interpretation is that one must always interpret the law as written, not as one wants it written or in a way that would make things more practical.

This is what Scalia taught us for his almost three decades on the court.  And it was so eloquently on display in this dissent published on January 25, 2016.  The law is the law.  If you don’t like it, there is a democratic process through which one can modify it. But the court is not the place for rewriting statutes.

It’s also worth reading another dissent Scalia wrote on January 25 in Montgomery v. Louisiana. In that case, Roberts and Kennedy joined with the four leftists to retroactively apply a decision rewriting the Eighth Amendment’s cruel and unusual punishment clause, thereby paving the road for the release of a number of violent murderers who were sentenced to life without parole.

Sadly, not only do we have 4-6 justices who, at any given time, believe it is their job to rewrite the Constitution and the role of the court, but we have 4-6 justices who abdicate their core Constitutional responsibility to interpret statutes as written and not factor in political considerations or efficient market outcomes.

Scalia’s untimely death leaves a gaping hole in an already irremediably broken institution.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.