Actually the Founders didn't invest law-making power in the people's elected representative as at the time of the writing of the Constitution there was no direct election of Senators.
I'm just pointing out a historic fact in contradition to Althouse's piece. The Founders didn't invest all law making power in the people otherwise they would've made the Senate by direct election.
no, actually you are not "pointing out a historic fact in contradiction to Althouse's piece." Althouse's piece is primarily DIRECT quotations from Gorsuch's concurrence. Hence, why I asked you about what you are SPECIFICALLY responding to. Are you responding to Gorsuch's concurrence? Or to Althouse directly? The only part that is in her words is this passage: Gorsuch stresses democracy as a structural safeguard, intended by the framers to protect us from abuse by the elite, who would prefer to do what they, in their wisdom, think will be best for us. He nudges us to feel that those who argue for executive law-making — like Woodrow Wilson — regard the people as "selfish, ignorant, timid, stubborn, or foolish" — deplorables. And I have absolutely no clue what you are responding to.
Althouse's piece is entitled ""[T]he framers believed that a republic— a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable 'ministers.'" Except that they even considered the Senate to be ministers that were not really accountable to the voters which is why they had long terms and no direct election. Are you disputing that fact? Howabout then I'm contradicting Gorsuch since you're so eager to defend Althouse. On a more direct note this is again why I think the Founders are very important and we need to consider closely not just the Constitution but the Federalist papers and the Constitutional Debate. That said we also need to understand the actions of the Founders and the context of their times. That is why it's important to understand that the Founders also had a suspicion of direct democracy which is why they set up the Senate and the Electoral College. If Gorsuch really took to heart that democracy is the safeguard then he should also be for popular election of the President, or the USSC for that matter.
ugh. once again I have done no such thing, I am merely asking you to clarify what it is that you think you are rebutting. you are impossible
Yes of course you're not eager to defend Althouse even though you post her thoughts frequently and seem to be getting worked up that I was contradicting her piece. I even stated that you can consider it countering Gorsuch with an historical fact. As stated many times before you are under no obligation to respond to any of my posts if that will spare you aggravation.
You don't have to respond: Federalist No. 64 "If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged."
clear explanation Why the Supreme Court Reined in the EPA https://www.libertyandecology.org/w...paign=why-the-supreme-court-reined-in-the-epa
https://www.manhattancontrarian.com...entally-irreconcilable-constitutional-visions There Are Two Fundamentally Irreconcilable Constitutional Visions July 01, 2022 by Francis Menton It’s been a momentous couple of weeks at the Supreme Court. As usual, they saved the big cases for the end. This year the big three were Bruen (gun rights), Dobbs (abortion rights) and West Virginia (administrative regulation of CO2). All three cases were decided 6-3 along ideological lines. These cases involved the most basic issues of what the Constitution is and how it is to be interpreted. On those issues there is virtually no hope of one side ever convincing anyone from the other side. There just are two fundamentally irreconcilable visions of how this should work. The two visions can be summarized in just a few sentences each: Vision 1. The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection. The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved. Vision 2. The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete. The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document. If a right is enumerated in the Constitution but disfavored by the current left (e.g., the right to “keep and bear arms”), then the courts should find a way to uphold enactments that minimize that right down to the point that it is a nullity. If a right is notenumerated in the Constitution, but is a priority of the left (e.g., abortion), then that right can be discovered in some vague and unspecific constitutional language (“due process”). And if the left has a priority to transform the economy and the way the people live, but the Congress does not have sufficient majorities to enact that priority, then the Executive agencies can implement that priority on their own authority, and the role of the courts is to assist the agencies in finding something in the tens of thousands of pages of federal statutes, however vague and dubious, that can be claimed to authorize the action. Suppose that you are on the Supreme Court, and you subscribe to Vision 2; and thus you find yourself time after time on the losing end of these 6-3 decisions. What’s your strategy in writing your dissents? Actually, it’s easy. The goal is to divert attention away from the actual Constitution as far and as quickly as possible. Instead, you argue that the position of the current left is the only moral position, and anyone who might oppose it is a monster. Does this have anything to do with the Constitution? No, but so what? Don’t worry — you have the entirety of the media and academia to support you and to help keep the people from figuring out what you are doing. Don’t believe me? Let’s look at the dissents in the three decisions that are the subject of this post. First, Bruen. Justice Thomas has written a majority opinion that basically says that the right to “keep and bear arms” is right there in the Constitution, Second Amendment, and that this right is entitled to the same recognition and status as the other rights in the Bill of Rights. Here is the first paragraph of Justice Breyer’s dissent: In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick). In the face of these statistics, how could you be against New York’s gun regulation, you monster? Next up we have the joint Breyer/Sotomayor/Kagan dissent (no lead author) in Dobbs. This time you must counter the Alito majority decision that says, basically, sorry, but the Constitution doesn’t say anything about a right to abortion, so it’s up to the states. Here again is the first paragraph: For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions. To oppose us would be to take women back to the Middle Ages. And what exactly does that have to do with the Constitution? Only a troglodyte could ask such a question! Obviously, the Constitution says whatever is needed to support these critical moral principles. I hope you’re starting to get the idea how this is done. . . . more
conclusion Now on to West Virginia. This time you must counter Chief Justice Roberts, who in essence says that since the Constitution grants “all legislative powers” to the Congress, administrative agencies can’t undertake a complete transformation of the economy on their own authority. Your argument (this time from Justice Kagan) is: but this is just so terribly, critically important to save the planet! Here’s the second paragraph of the Kagan dissent: Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is “unequivocal that human influence”—in particular, the emission of greenhouse gases like carbon dioxide—“has warmed the atmosphere, ocean and land.” Intergovernmental Panel on Climate Change, Sixth Assessment Report, The Physical Science Basis: Headline Statements 1 (2021). The Earth is now warmer than at any time “in the history of modern civilization,” with the six warmest years on record all occurring in the last decade. U. S. Global Change Research Program, Fourth National Climate Assessment, Vol. I, p. 10 (2017); Brief for Climate Scientists as Amici Curiae 8. The rise in temperatures brings with it “increases in heat- related deaths,” “coastal inundation and erosion,” “more frequent and intense hurricanes, floods, and other extreme weather events,” “drought,” “destruction of ecosystems,” and “potentially significant disruptions of food production.” American Elec. Power Co. v. Connecticut, 564 U. S. 410, 417 (2011) (internal quotation marks omitted). If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici Curiae 6. Rising waters, scorching heat, and other severe weather conditions could force “mass migration events[,] political crises, civil unrest,” and “even state failure.” Dept. of Defense, Climate Risk Analysis 8 (2021). And by the end of this century, climate change could be the cause of “4.6 million excess yearly deaths.” See R. Bressler, The Mortality Cost of Carbon, 12 Nature Communications 4467, p. 5 (2021). The text of the Constitution? The reservation of “all legislative powers” to the Congress? Those are for chumps. By page 5 of her dissent, Justice Kagan has made it clear that a statute that just said “The government must do everything appropriate to save the planet; EPA to implement.” would be just fine with her to authorize the agency to transform the economy: A key reason Congress makes broad delegations like Section 111 is so an agency can respond, approriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. Of the three decisions discussed, the one likely to have the most far-reaching impact is West Virginia. During his first days and weeks in office, President Biden issued one Executive Order after another instructing every part of the bureaucracy to figure out any way it could to implement the “climate” agenda. Statutory authorization? Who needs that? Now, not only is EPA’s most expansive regulatory initiative getting shut down, but multiple other agencies have comparable gambits likely to fail in the courts. Most famously, the SEC is now out with 100 pages or so of new proposed regulations, mandating corporate disclosures of “emissions”; and the Federal Reserve supposedly is adopting saving the climate as a third of its missions (the other two being price stability and full employment). More such dubious initiatives are under way in agencies from the Department of Energy to the Department of the Interior. A major transformation of the economy requires specific legislation duly enacted by Congress. Who could have though of such a crazy idea?
Lol. Did I get this right? Originalists and Traditionalists of this Court made up a new doctrine (the Major question) out of thin air to strike down the traditional delegate doctrine? Congress has always left the details to the experts (the EPA in this case but really any dept of the executive) and if necessary Congress can always come back and restrict. My opinion is this should have been left between Congress and the Executive. Congress gives power and can take power away from the executive through legislation. The Court literally created a new doctrine out of thin air because Congress can’t do a job that the majority of this Court wanted. Now, the Court was pretty creative in doing this but what's funny is its hypocrisy and inconsistency. We are the originalists and the traditionalists! Then turn around and create something out of thin air to satisfy their political positions.
Thus it should be left between Congress and the Executive to figure that out. The Court shouldn't arbitrarily draw that line. They aren't experts on the day-to-day business of executing laws (that's the Executive) nor do they have the power to legislate (clearly that Congress). In 2001, the Court already unanimously rejected the nondelegation argument in a decision written by Scalia that said exactly this. DELEGATION AT THE FOUNDING - Columbia Law Review Our conclusion is straightforward. The nondelegation doctrine has nothing to do with the Constitution as it was originally understood. You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both. Whitman v. American Trucking Associations - Ballotpedia HIGHLIGHTS The case: Several industry groups challenged the EPA's revised 1997 ozone regulation. The D.C. Circuit Court of Appeals then ruled that section 109(b)(1) of the Clean Air Act unconstitutionally delegated legislative power to the EPA. The issue: Did the Clean Air Act unconstitutionally delegate legislative power to the EPA? The outcome: The Supreme Court ruled that the Clean Air Act did not unconstitutionally delegate power and that the 1997 ozone rule fell within the bounds of the EPA's authority, though its implementation policy was unlawful. Why it matters: The Supreme Court affirmed the language of the Clean Air Act instructing the EPA administrator to promulgate NAAQS based solely on concerns of public health, and not of economic cost. The court also reaffirmed the intelligible principle test and held that those limiting principles must come from Congress, agencies could not limit themselves when power had been delegated unconstitutionally. "It had held, however, that the statute itself was constitutional and the EPA could reformulate its interpretation to prevent itself from violating the nondelegation doctrine. The Supreme Court reversed this decision, holding that while the sections of the CAA did indeed fall within the bounds of acceptable delegation, the limitations on agency actions must come from Congress. An agency could not set those limits for itself."
actually they just finally put a name to something that has been there all along. Kind of like the right to privacy
from the CRS report posted above: Overview of the Major Questions Doctrine Agencies must often interpret statutes that grant them regulatory authority. If an agency acts based on the agency’s interpretation, and that action is challenged, courts may be called upon to review such interpretations to determine if the agency has exceeded its authority. Reviewing courts will sometimes defer to an agency’s interpretation of an ambiguous statute. In a handful of cases involving a challenge to agency actions, the Supreme Court has rejected agency claims of regulatory authority under the major questions doctrine when (1) the underlying claim of authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly empowered the agency. The Court and commentators have sometimes justified the doctrine based on the Court’s observation that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” The Court has often applied the major questions doctrine when determining whether to defer to an agency’s statutory interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which governs the scope of an agency’s authority to interpret ambiguities in a statute. To date, the Supreme Court has not articulated the precise scope of the major questions doctrine, explained when an agency action will raise a question so significant that the doctrine applies, or expressly identified the doctrine by name as a basis for a decision. The Court has nonetheless decided a number of cases in the past three decades based on the principles that commentators and lower courts (and individual Supreme Court Justices) have come to identify as the major questions doctrine. The Court has articulated those principles in its review of: The Federal Communication Commission’s waiver of a tariff requirement for certain common carriers under its statutory authority to “modify” such requirement; The Food and Drug Administration’s (FDA’s) regulation of the tobacco industry pursuant to its statutory authority over “drugs” and “devices;” The Environmental Protection Agency’s (EPA’s) consideration of costs in regulating air pollutants under its authority to prescribe ambient air quality standards that “are requisite to protect the public health” with “an adequate margin of safety;” The Attorney General’s regulation of assisted suicide drugs under his statutory authority over controlled substances; EPA’s determination that the regulation of greenhouse gas emissions from motor vehicles triggered greenhouse gas permitting requirements for stationary sources; and The Internal Revenue Service’s decision that a federal health care exchange is “an exchange established by the State” for purposes of determining eligibility for tax credits. In addition, the Court has rejected an agency’s invocation of the major questions doctrine in at least one case, holding that EPA did have legal authority based on the plain language of the Clean Air Act to regulate greenhouse gas emissions from motor vehicles. more at the Link
