On Monday

The premise of Michigan v. EPA was whether the agency could refuse to consider costs to business in its decision to regulate, based on the appropriateness and necessity after studying public health hazards as a result of power-plant emissions.

According to the EPA website, the Mercury and Air Toxics Standards – “the first ever national limits on mercury and other toxic emissions from power plants” – would have required power plants to use “widely available, proven pollution control technologies to protect families from pollutants.” The EPA estimated MATS would prevent up to 14 premature deaths in California, “while creating up to $120 million in health benefits in 2016.”

Roughly 70 percent of California’s total electricity production comes from power plants located within the state, as well as outside the state but owned by California utilities. Most of our electricity is generated by natural gas and hydroelectric power stations, both of which produce negligible amounts of mercury compounds.

As written in the majority opinion delivered by Justice Antonin Scalia, the actual quantifiable benefits of the new mercury standards, as initially estimated by the EPA, would only be $4 to $6 million per year throughout the U.S. Compared to the $9.6 billion per year costs that power plants would be forced to carry under the EPA’s regulations, the benefits of imposing such standards were questionable, and petitioners, including 32 states, brought the case to the court. “It is not rational, never mind ‘appropriate,’” Scalia wrote, “to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

“When agencies come up with these costly and fickle regulations, they need to consider who will inevitably pay the bill,” Karen Harned said in a prepared statement; she’s the executive director at the Small Business Legal Center for the National Federation of Independent Business. “The EPA does not have the authority to implement hugely expensive new rules without performing the mandatory economic analyses.”

House Majority Leader Kevin McCarthy, R-Calif., also criticized the EPA’s actions in a press release:

“The mere fact that the EPA wished to ignore the costs of its rules demonstrates how little the agency is concerned about the effects it has on the American people. From its ozone to greenhouse gas to navigable waters rules, the EPA continues to burden the public with more and more costs even as so many are still struggling to get by and improve their lives in this economy.”

The EPA later argued that the range Scalia cited was a low-ball estimate strictly for the mercury-related benefits, not the other ancillary benefits that would have come from reductions in other pollutants, such as particulate matter.

Despite these accusations that the EPA did not consider costs at all during the process of creating the regulation, Justice Kagan argues otherwise in her dissent.

Kagan wrote that the EPA did, in fact, take “costs into account at multiple stages and through multiple means as it set emissions limits for power plants.” Though the EPA declined to analyze costs at the onset of the regulatory process, since the agency “could not have measured costs at the process’s initial stage with any accuracy,” the EPA eventually conducted a cost-benefit study which found quantifiable benefits exceeding the costs up to nine times over – “as much as $80 billion each year.”

The Michigan ruling might also have greater implications on the Obama administration’s overall environmental agenda, which would have included the EPA’s first-ever regulations on greenhouse gases emitted by power plants – expected to roll out later this summer. Politico notes, “Monday’s decision indicates a court skeptical of EPA’s aggressive regulatory agenda, throwing into question how the court will react to the virtually unprecedented climate plan.”

Leondra Kruger has been confirmed to a seat on the Supreme Court of California, a position to which she was nominated by Governor Jerry Brown last month. Governor Brown previously appointed Goodwin Liu (confirmed in 2011) and Tino Cuellar (confirmed in August).

These appointments make the California Supreme Court a court of national interest, in part because a Democratic President would likely consider Brown’s picks if there is a future U.S. Supreme Court vacancy on his or her watch. Brown’s picks share diversity, elite credentials, and youth. Given that prior judicial experience is a big asset for those hoping to land on a Supreme Court shortlist — it’s not required, but it’s helpful — Brown’s nominations likely expand the set of candidates to be considered if or when there is a future SCOTUS vacancy under a Democratic president in the next few Presidential election cycles.

As the picture above suggests, Kruger has already handled big cases before SCOTUS, representing the Obama administration. If Kruger, Liu and Cuellar are intrigued by this possible promotion, that seems to make it more likely that individually or together they will stake out bold new stands on major issues. There’s a pent-up desire among millions of liberals for more Warren Court-style sweeping rulings addressing perceived issues of social justice. A Democratic president, even a center-left politician, would see appointing activist judges to the high court as an easy way to please big Dem constituencies.

Brown vs. Board of Education for 21st century?

This could bode very well for the reformers behind the Vergara vs. California case.

The trial court judge, Rolf Treu, likened state laws that funnel the worst teachers to the schools with the most troubled students to segregated schools that existed in the South before the 1954 Brown vs. Board of Education ruling, one of the most monumental in U.S. Supreme Court history. The state is now appealing Treu’s finding that teacher protection laws are unconstitutional because of their negative effect on minority students, and the case is close to certain to end up before the California Supreme Court.

If I were a CTA or CFT lawyer, this dynamic would worry me a lot — especially after reading the Vergara editorial in the most influential journal of liberal opinion, the New York Times:

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

By Josephine Djuhana

A resolution that seeks to amend the California Constitution and undo the work of Proposition 209 for institutions of higher education is making its way through Sacramento and will likely be placed on the ballot in 2014.

SCA 5, authored by Sen. Ed Hernandez, D-West Covina, proposes “an amendment to the Constitution of the State, by amending Section 31 of Article I thereof, relating to public education.” Recently re-referred to the Senate Committee on Elections and Constitutional Amendments after passing the Committee on Education, the resolution specifically exempts public education institutions of higher learning from the requirements of Proposition 209.

In other words, SCA 5 allows schools to use race, sex, color, ethnicity or national origin as a consideration for accepting students or hiring employees. Using such criteria currently is banned by Prop. 209, which voters passed in 1996.

Janet Chin, a media spokesperson for Sen. Hernandez’s office in West Covina, told me the resolution would take steps to “ensure that universities reflect the diversity of the state.” She said long-term benefits would include creating equal opportunity for all Californians by having a “well-trained, diverse workforce” that is needed to compete in the global economy.

“Campuses have become less diverse” since Prop. 209 passed, Chin said. “Qualified individuals have been looked over.” Since Prop. 209, she said, minorities have been “underrepresented” in universities, and SCA 5 seeks to correct this error by securing the best and brightest students.

Prop. 209 and measures of merit

Ward Connerly, founder and chairman of the American Civil Rights Institute, told me Chin’s reasoning was “nonsense.” He sponsored Prop. 209.

“If they want the best and brightest, they will use merit,” Connerly said of university admissions processes. “They have the right to do that right now, free of any race consideration or discrimination.”

Connerly, a former University of California regent, highlighted higher education in the Golden State, starting with the UC system — in his words, “a very prized system” — which regularly secures the top 12.5 percent of students from California high schools. He also pointed to 23 campuses in the Cal State system, many of which, he said, were “equally as good as some UC campuses”; and to our community college system, with more than 100 college campuses across the state. “It defies logic,” he said to me, “for anyone to say that anyone in California doesn’t have a chance to get an education.”

“We’re a pluralistic society in California, probably the most on the planet,” he said. “We have to learn to treat everybody equally and not allow anybody to have any preference from any public institutions. It’s a mistake to now flirt with changing that and empowering public institutions to discriminate.”

Prop. 209, said Connerly, was the product of a very contentious battle in the state back in 1996. The ballot measure explicitly denied public institutions, including state and local governments, as well as universities, colleges and schools, the ability to discriminate against or give “preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.”

The results of Prop. 209 were robust. In fact, minority graduation rates actually increased after Prop. 209 was implemented. The measure “led to a more efficient sorting of minority students” according to research by Duke University:

“To address the robustness of the positive effects on graduation and the role of matching, we analyze unique data for all applicants and enrollees within the University of California (UC) system before and after Prop 209. The positive Prop 209 effects on minority graduation rates persist, even after controlling for observed and unobserved qualifications of UC enrollees. We present evidence that certain institutions are better at graduating more-prepared students while other institutions are better at graduating less prepared students and that these matching effects are particularly important for the bottom tail of the qualification distribution.”

The research also clearly demonstrated that students admitted with lower qualifications than their peers ended up learning less and had a drop out rate disproportionately higher than science majors.

“Sen. Hernandez is behind the times,” said Connerly. “It’s not forward-looking for him to inflict on the people of California another meaningless battle.”

Striving for diversity doesn’t solve the problem

Heather Mac Donald, a senior fellow at the Manhattan Institute, told me the UC system has “already been violating the spirit of Prop. 209 by importing obvious surrogates for race into its so-called ‘holistic’ admissions process.” The Hernandez bill, she said, would simply “open the floodgates of blatant racial references once again and allow UC to discriminate without apology.”

“There are high quality students that are not getting into these schools because there is already an informal quota,” she said.

The Fisher v. University of Texas at Austin case brought national attention to similar issues. The Supreme Court recently decided in a 7-1 ruling that the federal appeals court was wrong to dismiss Abigail Noel Fisher’s case, in which she argued that the University of Texas illegally discriminated against her because of her race.

The ruling written by Justice Anthony Kennedy essentially stated that diversity must not be an ultimately deciding factor in university admissions processes. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Kennedy wrote.

“Attaining diversity for its own sake is a nonstarter,” wrote Justice Clarence Thomas in his concurring opinion. “The pursuit of diversity as an end is nothing more than impermissible ‘racial balancing.’”

The San Francisco-based Asian American Legal Foundation, in their amicus brief filing for the Fisher case, underscored the problems with having such racial quotas. Asians, they write, have “historically been, and continue to be, denied access to public schools due to overt racial and ethnic prejudice as well as ostensibly well-intentioned ‘diversity’ programs such as the program at issue here.” The brief went on to explain:

“UT Austin is engaged in racial balancing without any remedial purpose. It is similarly denying applicants access solely because they are of the ‘wrong’ race or ethnicity. And it is proclaiming that its good faith should excuse the fact that it is trammeling on applicants’ civil rights.”

The same is essentially happening in California’s higher education system behind closed doors.

In regards to admissions, Ward Connelly echoed the majority opinion of the Supreme Court and said officers must “use neutral measures first” and “exhaust all avenues of race neutrality” before considering employing policies of racial preferences.

But exempting universities, colleges and schools from the requirements of Prop. 209 would do exactly the opposite.

Connerly and other critics insist that SCA 5 would create the framework for an even broader scope of racial discrimination against qualified students, regardless of their achievements or merit.

By Katy Grimes

The U.S. Constitution is under attack again.

At issue is the controversial Citizens United vs. Federal Election Commission U.S. Supreme Court decision. It basically allowed unlimited corporate contributions to political campaigns.

Two Assembly Democrats authored Assembly Joint Resolution 22 and say that it is part of a growing national grassroots movement to urge Congress to overturn the U.S. Supreme Court decision.

In March, the Assembly passed AJR 22 to urge Congress to amend the United States Constitution, and impose limits on political corporate contributions.

Assemblymen Bob Wieckowski, D-Fremont, and Michael Allen, D-Santa Rosa, presented AJR 22 to the Senate Committee on Elections and Constitutional Amendments Tuesday. “As the most populous state in the country, with the largest congressional delegation, California must take a stand in opposition to this misguided ruling,” Wieckowski said.

“Corporations are not people and money is not speech,” is the rally cry for those who want the case overturned.

“At a time when the people’s trust in their government is at an all-time low, Citizens United further erodes the public’s faith that the people’s interests will come before those of wealthy special interests,” the authors wrote in bill analysis.

Citizens United

In January 2010, the United States Supreme Court reached the landmark decision which reaffirmed that the First Amendment did, in fact, prohibit the government from restricting political expenditures by corporations and unions. The court said that political contributions are a form of free speech, and should not be regulated or narrowly tailored by the government for its own interest.

As part of the Bipartisan Campaign Reform Act of 2002, also called McCain-Feingold, Congress prohibited corporations and unions from using general treasury funds to make “independent expenditures” for “electioneering communications” within 60 days of a general election, or within 30 days of a primary election.

The AJR 22 analysis explained, “Citizens United was a controversial documentary entitled, Hillary, which was highly critical of then-Senator Hillary Rodham Clinton, a candidate in the 2008 Democratic presidential primary. Citizens United, a non-profit corporation, wanted to make the documentary available by ‘video-on-demand’ within the 30 days of the primary election. Concerned that the broadcast might be prohibited by BCRA, Citizens United sought declaratory and injunctive relief that the BCRA did not apply to the documentary and, indeed, would be unconstitutional if applied to the showing of Hillary.”

When  the case came before it in 2o10, the court proceeded not only to strike down the related provisions of McCain-Feingold, but to overturn long-standing precedents upholding the constitutionality of federal and state efforts to regulate campaign financing. In overturning its prior decisions, the Supreme Court in Citizens United held that corporations and unions are now free to spend unlimited amounts on “independent expenditures” — even for advertisements that expressly mention the candidate by name.

One of the outcomes of the Citizen United decision was the creation of Super Committees and SuperPacs, which may accept unlimited contributions from individuals, unions, and corporations.

Despite the Supreme Court stating that the First Amendment “must protect corporations and individuals with equal vigor,” California Democrats continue to push the passage of the resolution urging Congress to amend the Constitution, and limit corporate contributions to political PACs.

Elections Today

During the Assembly floor debate of AJR 22, arguments and floor speeches by Democratic legislators only addressed corporate contributions. Democrats in the Assembly never once mentioned union contributions. The Democrats repeatedly said that AJR 22 wasn’t just a resolution, but was part of a national movement to limit and control corporate political contributions.

AJR 22, is one of 13 resolutions seeking to overturn Citizens United. All of the other 13 resolutions seek to overturn the decision in different ways. Some of the resolutions also claim that corporations are not “persons’; others would seek more congressional power to regulate campaign contributions and expenditures more narrowly.

Wieckowski said that, with his resolution, California will be part of a “grassroots movement that believes corporations are not people and money is not speech,” a quote made famous by David Kairys, the civil rights law professor who warned that the 2010 court decision would unleash “a new wave of campaign cash and adds to the already considerable power of corporations.”

Supporters of the resolution who testified at the hearing included CalPIRG, the California Public Interest Research Group, a group founded by activist Ralph Nader; Common Cause, a non-profit association often described as “the people’s lobbying association,” but which also is a liberal activist grouip; California Church Impact; California League of Conservation Voters; Public Action; and a succession of private citizens angry about the Citizens United decision.

The groups supporting AJR 22 called for “reasonable limits” for contributions. “What are reasonable limits?” asked the committee chairman, Sen. Lou Correa, D-Santa Ana. “This is window dressing.”

Correa suggested that Proposition 34, passed in 2008, would be a more effective policy. Prop 34 limits the amount of money an individual can contribute to candidates for the California State Legislature and for statewide elective offices. It also limits contributions to political parties. Prop 34 expanded financial disclosure requirements and prohibited contributions from lobbyists to the election campaigns of politicians they lobby.

But the unintended outcome of Proposition 34 allowed many other ways for officeholders, candidates and special-interest contributors to legally circumvent the measure’s contribution limits.

Republicans are opposed to the resolution and have said that the government-imposed restrictions should be removed from political campaign contributions, and complete disclosure and transparency about who is contributing should be required instead.

During the Assembly floor debate about AJR 22, the most pertinent question to the argument was asked by Assemblyman Tim Donnelly, R-Hesperia: “What is a corporation? A corporation is an assembly of people. If you’re regulated by the government, don’t you have the right to address your government?”