Environmental Law Has ‘Major Questions’

On today’s podcast, David and Sarah discuss red state crime rates versus blue state crime ...

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On today’s podcast, David and Sarah discuss red state crime rates versus blue state crime rates, environmental law as a vehicle for rescuing the American constitutional structure, why senators make better presidential candidates than they used to, and the evolutionary psychology behind bad gamer behavior.

Show Notes:

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  1. Avatar photo
    Tom Kalbach

    "I don't know why we're teaching Calc II instead of media literacy" -- SI

    This opinion reduces your score by 2. The change has been noted on your permanent record.

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    Daniel Staples

    This is totally unrelated to this episode but I have a question about Ketanji Brown Jackson and the discussion a out her judicial philosophy. I came across this article https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069
    and I think it relates to the judicial philosophy discussion.
    I know it might be below the intelectual level of discussion on this podcast, but I think it would be great to hear about the basis and arguments of judicial philosophy debate.

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    ed74siasl

    I wish I wasn't so far behind schedule here, but re: 34:55, HOLD ON JUST A TEXTUAL MINUTE, WHERE the actual heck does the U.S. Constitution state that Congress is "supreme?"*

    *I'll have you know my kindle search of the word "supreme" in the USC only has one result in Article 1, and that refers to Congress' ability "to constitute tribunals inferior to the Supreme Court."

    Yes or no: Does the Constitution specify the uberlairdness of Congress?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      No except that it’s article one—primus inter pares.

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        ed74siasl

        PUHlease. ONE of them has to be first, unless they were going to call it a three way tie for article iii. Is there any reason to believe they didn't shoot rock paper scissors on the order?
        If the Constitution doesn't specifically state something, isn't the textualist position "well it doesn't say so," and that things left unstated were done so deliberately?
        TBH, my beef is way less with the actual philosophical position that Congress is tops, rather with the implication that that's what it says.

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          Federalist papers

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  4. DocHeartless

    I want to jump on the string of appreciative comments for your personal story, Sarah -- better late than never! It led to a wonderful discussion with my 14 year old daughter that didn't end in barbed disagreements. She is much more liberal (reflexively so, I'd argue) whereas I tend toward the moderate conservative view, but we both found your heartbreaking tale inspiring. And we had a great time laughing at the anti-mansplaining angle as you tied it to legislation creation. The "hell yeahs" and "I know rights" were flying fast and furious. You did take such a risk in opening yourself up like that in today's media environment, so I am thrilled that it didn't result in petty nastiness. Thank you!

    On a related note, I am all for expanding membership and listenership to The Dispatch and your podcast but, boy, I hope you guys never lose this secret sauce that has made such a special comment section. I have never encountered such a thoughtful and respectful public forum like this and I wonder how much of it has to do with simply the "niche" characteristics (don't tell Jonah I said that) and small village-like atmosphere of the audience. I wish you all the best of luck, but I'm crossing my fingers that increased audience numbers don't put flies in the punch bowl.

    As a funny aside, I have an owl story for you. My family recently moved to Iowa and I have been trying to put little projects into place to make us feel more at home. I built a barred owl house last summer and put it up in a tree outside our kitchen window where my wife works from home. Now, this is no mere plywood bird house. It is a solid two feet square with drainage, asphalt shingle roof, double natural oak wood roosts, and a solid foot of oak bark nesting inside. What's more, my son and I hung that puppy a solid 40 feet up in our backyard tree. We had to break out our rock climbing gear and figured out how to self scale way up there with prusik knots. My son invited over half a dozen of his friends for burgers as an audience.

    And what was the reward for all this effort? For months we've been watching a half dozen tree rats move into the greatest palace of any squirrel's dream. I'd drink my coffee looking out at all that effort and see three fuzzy faces staring at me with amused disdain. While listening to this podcast, my wife came downstairs and showed me a new picture of a gorgeous barred owl standing calmly on the shingle roof. I'm pretty sure my full throated "Yeeeaaaaahhhhhh!!!!" with both fists pumping in the air could be heard by the neighbors. So I have my own new adult owl friend in my backyard, and I'm totally with you on the passionate opposition to shooting them to make room for other owls! Team barred owl, baby!!

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Oh my goodness!!! Barred owl found his dream home. Imagine how impressed the missus is going to be when she sees his new digs!

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  5. Fawn Spady

    My husband and I listen all the time now. You are our favorite podcast. We had a thought about the cause of crime. You didn’t mention drug addiction and mental illness. The increase in drug addiction in poor and and inner cities is staggering. It has lead to more crime, more guns and more gang activity. We live in the Seattle area where we own a medium sized fast food family business with 8 locations. We must spend over a million dollars a year on private security because of the lack of policing and prosecution. The lack of intervention and tough love programs that invest in addiction rehab is a big cause of the problem. It would be interesting to see how crime statistics correlate with opioid and meth addiction and the organized crime that supplies it.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      No doubt correlated but I doubt causal in the sense that the same thing driving crime may also drive drugs and a failure to address mental health needs.

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      1. Fawn Spady

        I’m not sure I agree with you Sarah. Poverty is a key component for sure, but many who are addicted are not originally poor. Unfortunately, I have a lot of experience with this in my family. It’s the self medicating and the addiction that many times leads to the poverty. Thank you for responding so quickly. I’m going to send you another legal/political question. Should I just do it on a show thread or separately?

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          Totally agree re poverty which could also be a correlated and not casual feature. My point is that it’s easy to tie things in correlation but less so the causal arrow in part bc these things all drive each other after they get going.

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  6. Jason V.

    I have a question entirely unrelated to this particular podcast (though I hope you can help me answer my question).

    I have seen some comments about how "Joe Biden can't send troops to fight Russia without congressional approval" and so on. However, I have also know that the US is bound by the NATO treaty to respond (in some way) if another NATO nation is attacks and invokes Article V.

    My question is, if the President determines a US military response is justified or required, does he still need a Declaration of War or AUMF from Congress or has that essentially been "pre-authorized" by the ratification of the treaty?

    What is the overlap or interaction between the Constitution and a treaty that has been properly ratified and War Powers (or any other congressional prerogative)?

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  7. Kimberlybrisky

    Not a lawyer, but a former Hill staffer here. I wrote my thesis on Congress in the post-earmark reform era ushered in during the 112th Congress with the Freedom Caucus. Similar to the legislative branch ceding power to the executive (either purposely by delegation or by non-action) on policy, the same can be said for directing federal dollars. The power of the purse is unmatched, and when earmarks were “banned,” discretionary spending did not stop. Not only did it remove critical leverage to compromise on tough votes, the executive branch became the overseer of pork. At least we knew about the bridge to nowhere - post earmark ban, any semblance of transparency was gone. Instead, agencies were able to direct federal funding through grants and otherwise to presidential priorities and fulfill favors. I understand the knee-jerk negativity to “pork-barrel spending,” but banning earmarks is not the answer to federal fiscal responsibility. The unintended consequences outweigh the drop in the bucket savings. Entitlement reform on the other hand…..

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  8. Joel B

    Justice Gorsuch loves major questions doctrine so much, he wants to take it behind the middle school and get it pregnant. https://www.quotes.net/mquote/659747

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    Seth B

    Great episode as usual.
    I laughed with recognition at Sarah's story of going down the rabbit hole with Axios, because I was doing something similar this morning - albeit with a less respectable outlet: the NY Post.
    An acquaintance sent me an article from the Post which included a breathless claim that "8% of Biden voters told pollsters they would have supported Trump had they known about the bombshell contents of [Hunter Biden's] laptop."
    The smell of BS on that figure was so strong that I decided to track it down to its source. The Post cites the Chattanooga Times Free Press, which in turn points to Media Research Center.... whose website resembles something between The World Weekly News and The Daily Wire. The "study" itself, a link to which I'll leave at the bottom, is almost comically incompetent. It was, naturally, an internet survey, with no mention of how the marks - excuse me, respondents - were located in the first place.
    The respondents were first led by the nose with questions such as "At the time you cast your vote for president, were you aware that Joe Biden chose as his running mate and successor Kamala Harris, rated the most left wing Senator in America, even more leftist that Bernie Sanders, a self-described socialist?" And after buttering them up for a while like this (with many "did you know" questions that fawned on Trump), the survey asks these Biden voters if, knowing what they've just learned, they would still have voted for Biden? 😂
    Interestingly, though, the 8% figure that was mentioned in the NY Post appears nowhere in the MRC's parody of a survey. But who is going to notice? And that, I suppose, is the point of an information laundering scheme.
    The "study": https://cdn.mrc.org/TPC-MRC+Biden+Voter+Messaging+Survey+Analysis+Nov+2020_final.pdf

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    Kevin Johnson

    Luv ya, but how can a legal podcast discuss crime and ignore…LAWYERS? Loved your earlier pod with defense expert on systemic problems. Totally support your and Jonah’s strong take against mono-causality. But Chicago police chief, among others, says prosecutors who refuse to prosecute gun crimes until someone dies are a key problem. We have many cases of folks on bail hurting others. We have a national movement pushing “progressive prosecutors” and some political races explicitly run on that issue ( hi, Mayor of NY) Crickets from my AO heroes. Even if you want to say “nothin to see here” to harsh folks like me… why ignore this issue? Thanks much

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