I don't consider non-delagation a doctrine because ever since road-making, coining money, and the steamboat commission, Congress has delegated. So it's not a doctrine in the definitional sense in law is a principle of law established through past decisions. For me, it's more of a preference, and that's fine - SCOTUS makes choices just like all other parts of government. In our history, there have been a couple of periods where SCOTUS stepped in to overrule congressional delegation of powers. Reconstruction was a big time for this. A lot of cases have merit on both sides, but the general theme could be attributed to the fact that SCOTUS thought the US was changing too fast and didn't think Black people were ready to be fully integrated. They struck down new government programs to help people because they weren't ready for government to be about helping (before that it was about government staying out of the way). Another period of fighting back against delegating is the New Deal era, where until FDR threatened the court with drastic change, many of his programs were struck down. A lot of New Deal stuff people love today (FDIC, welfare, Social Security), but many were struck down. I'm not an economist and I have no idea how America would look today if FDR's pricing and wage agency continued where they could set national prices for many goods and national wages for many jobs. And then I would argue this is the 3rd main era of SCOTUS fighting back against congressional delegation of authority and the conservative judges (some more process principled than others...the same could be said of the liberal judges) are really pushing back hard since the New Deal court backed down. The tradeoff is this...the world of american government is huge and complicated. Federal agencies are huge and complicated. Some are deservedly complicated and others probably are too bloated, and there's everything in between. If SCOTUS and the courts become too pro-active in the complicated matters, then they essentially become the rule-making deciders. Vs. if agencies do everything and have all the power, then what we're having is an unelected body making so many rules, using the steps set forth by the APA. Some agencies have more democratic attributes than other agencies. It's just all complicated. And WTF is a major question? Totally subjective. Is it based on projected money impacts - like this policy will have a negative or positive effect of $50 million?
Very hard to take something seriously when it using loaded language like "The role of the courts is to implement the current priorities of the academic left" but yes there are conflicting views of what the nature of the Consitution is regarding Originalism and textual interpretation. I will though point out to claim that it is only the "Left" that is arguing for expanding interpretation Conservatives such as John Yoo have championed the idea of the "Unitary Executive" that vastly increases the power of the Executive branch to act far beyond any declared purview of Congress to essentially doing anything.
Can the Congress give authority to the Department of the Interior to "do good things?" If they do, can the Department of the Interior do anything they want, as long as they characterize it as good things? Can they levy a 2000% tax on gasoline for forest renewal? What about to the Department of Defense? Health and Human Services? Transportation? Energy? Can the department of energy levy a tax on you and your neighbors, buy the land next to yours and build a coal power plant, because having more energy is good?
Good stuff. This is why I sympathize with non-delegation preference. The CDC eviction moratorium from a technical language and legal perspective was defensible delegation, but it just hits the core of WTF'ness. Because when you're dealing with rents, evictions, contracts - all those things are state law stuff. It isn't in the realm of what the CDC and its predecessors (does it have predecessors - what government body quarantined all those sick ships in New Orleans in the 1900s..must have been the state). Anyhow, it felt weird even though COVID-19 was novel - it had novel it its description, lol. What if COVID was 20x worse? I doubt anyone would have cared how the rules were being implemented, other than the truther wackos and the process nerds, like me, lol (I'm the latter). So the line kept getting pushed pro agency from FDR all the way to Reagan, then back a little, then after Reagan forward again including Trump and Biden until now. Trump was losing lawsuits NOT because the plaintiffs were arguing that the agencies lacked authority. He was losing mainly because his people did crap paperwork and violated APA rules. Biden admin is losing big cases lately as SCOTUS is pushing back agency power consistently for the first time since the New Deal.
Don’t confuse the Supreme Court’s role with that of legislators https://thehill.com/opinion/judicia...supreme-courts-role-with-that-of-legislators/ excerpt: The Supreme Court didn’t say abortion is a good thing or a bad thing; it didn’t say abortion is moral or immoral. All it said in Dobbs v. Jackson Women’s Health Organization is that the court’s decision in 1973, finding a constitutional right to abortion, represented an “abuse of judicial authority” and that it is “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” That reasoning is not good enough for a very angry Sen. Elizabeth Warren (D-Mass.), who said the justices had “burned whatever legitimacy they may still have had” and that “they just took the last of it and set a torch to it.” If they handed out Olympic medals for tossing rhetorical hand grenades, Warren would be standing on the podium while they put gold around her neck. I mean, the woman used to teach law at Harvard, for crying out loud. Surely she understands the role of the Supreme Court. So, then, what’s all this hand-wringing really about? Here’s a theory: The left over the years has looked to the Supreme Court not so much to simply interpret the Constitution, but as an institution that would reliably deliver policy results they wanted but couldn’t get from Congress — policies on abortion, affirmative action, guns and other hot social issues. When they got the results they wanted, the court was a shiny gem — the cornerstone of rights, liberty and everything good about America. But when the results went the “wrong” way, the court was autocratic, undemocratic, imperial. Now that there’s a new sheriff in town, so to speak — the conservative justices who make up a majority of the court are making it clear that they’re not there to render decisions that make progressive activists happy. Sometimes their decisions will, and sometimes they won’t. But however they decide controversial issues, the justices’ job is to be neutral arbiters of the law. This seemingly obvious observation is seen by the progressive left as a kind of betrayal, as an act of aggression, and so it’s not sitting well with a lot of them, or their media allies for that matter. Never mind that all the court did in overturning Roe was to extricate itself from the issue of abortion and turn the matter over to the American people through their elected representatives. However you feel about abortion, if you’re a fan of democracy, this isn’t such a horrible thing. And so, even if Margaret Renki is correct when she says in the Times, “With these Supreme Court rulings, the law of the land no longer reflects the will of the people who live here,” someone needs to remind her — and a lot of other progressives — that it’s not the job of the justices to take a public opinion poll or hold their fingers up to the wind before rendering a decision. You don’t have to go to law school to know that. We learned it back in seventh grade. more at the link
https://althouse.blogspot.com/2022/07/i-was-surprised-that-dissenters-never.html July 7, 2022 "I was surprised that the dissenters never tried to defend the right to abortion and never try and offer an alternative ground. They relied entirely on stare decisis." by noreply@blogger.com (Ann Althouse) Said Larry Kramer, in "Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like. The legal scholar Larry Kramer on why the left’s embrace of judicial supremacy was a mistake" (NYT). Stare decisis is this flabby doctrine. You can go either way on it. It’s really hard to get a huge grip on that either way. So no engagement on the merits on the left and no effort to really explain why this right would make sense today from a popular constitutional perspective.... Kramer is talking to Ezra Klein. It's Klein's podcast — audio and transcript at the link — and a bit later in their conversation, Klein says: I want to spend some time in the liberal legal and constitutional culture that has emerged since the Warren court maybe has been at its apotheosis in recent years. I’m going to lay my cards on the table a little bit. Anybody who’s followed me for a long time knows I find the court functionally a bundle of myths dressed up in robes. And liberal legal thinking has struck me for some time now as somewhere between very defensive and very lame that it often appears to me to be animated much more by a defense of institutions, of courts, of procedures, of processes, of mystique, than any particular vision of the Constitution.... Kramer responds: I think... there needs to be a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost, right.... And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the 60s and 70s. You don’t see that on the right. They actually do have an animating vision of what the Constitution is meant to look like and do. Now you’re right about It being dressed up in mythic stuff. Because originalism and this notion that all we’re doing is letting history tell us what to do, that’s the myth.... Klein says liberals have been challenged by the critique inherent in originalism, which at least purports to be a "binding interpretive methodology," even if in practice, it's malleable. Kramer repeats that liberals need "some kind of animating vision." Otherwise, it's "just your personal preferences" or "some pretended, sort of, thing out there that decides it for you." What has been lost on the left is that — that kind of overarching animating principle that they can use to help them think about what to do. Why does he keep saying "animating"?! To "animate" is "To give spirit, inspiration, or impulse... To move mentally, to excite to action of any kind; to inspire, actuate, incite, stir up" (OED). The liberals are uninspired. What is this missing spirit? Is he looking for God? But he scoffs at "some pretended, sort of, thing out there that decides it for you." Where is the meaning? If it's not "deeply rooted in the Nation's history and traditions" — as the conservative Justices have it — then where can it be? It can't be just the stare decisis that was all the Dobbs liberals talked about. As Kramer puts it: And so you’ve just got holding on to lots of things, outcomes that were generated at a time when there was such a vision. What was the vision? If it was once there, where did it go? Is it still "out there"? Kramer says: But that vision itself is no longer widely embraced on the left, and it really hasn’t been replaced by anything.... It’s just, as I say on the left, they’ve, sort of, lost a coherent, overarching, animating vision of what the Constitution is trying to achieve that helps take it the rest of the way home and that would give them an affirmative agenda. As I say on the right, I think they have that, and then they use these, kind of, fake references to history, which just astonishingly seems in every single case to line up exactly with their current political preferences.... You can't beat something with nothing. Speaking of looking for something to believe in, Kramer and Klein get around to the fact that — and Klein puts it — "this court is full of Catholics." Kramer: "Yeah, really." Klein: "I mean, but there’s something to that. Not against Catholics, Catholics are great. I’m married to one. But there is the idea that there is an original context that can survive unchanged to this day. It’s just very strange." The very idea of something that can survive unchanged! As the podcast goes on, Kramer uses the term "popular constitutionalism," which has to do with judging "by what resonates with us, what makes sense, what kind of society do we want to have" and "not just blindly following popular desires." What does that mean? What's the difference between "popular desires" and what "resonates... makes sense... [and] we want to have"? I suspect the answer is elitism. Look at Kramer's stress on "leadership": It involves leadership. If you read Madison’s original stuff, he had an important role for leadership. But it wasn’t leadership tells the subjects what to do and what they should believe. It’s that we engage in an ongoing active conversation where the role of leadership is to lead towards some sort of better vision. You offer that vision, and you try and persuade, and if you do, the country follows you.... So that’s what political leaders are supposed to do.... The ability of leadership to exercise leadership is really impaired. The media system has been fragmented. Deference to leadership is down... And then it's back to vision: So it’s a little hard to see how it emerges, but the idea is that you get competing political visions of what the country should be that are themselves coherent and normatively attractive that are presented and people vote. I mean, Ronald Reagan did that, right. It’s not that we haven’t had visions. He had a vision, and he sold it.... But the liberals don't have a vision. They need a leader with a vision to animate them, but "we’re kind of between, betwixt and between uniting visions."
Returning Policymaking Power to Congress Last week’s Supreme Court decision in West Virginia v. EPA signals an end to judicial deference to broad agency actions. https://www.city-journal.org/west-virginia-v-epa-returns-policymaking-power-to-congress excerpt: Each year, federal administrative agencies issue between 3,000 and 5,000 final rules. In addition, they issue thousands of guidance documents—termed “Regulatory Dark Matter” by my Competitive Enterprise Institute colleague Wayne Crews—without the procedural protections of the Administrative Procedure Act’s public notice and comment requirements. These rules and regulations affect every facet of our lives. Yet, until recently, most courts, content to defer to agencies’ supposed expertise, have been reluctant to question agencies’ authority to issue these directives. They apply Chevron deference—derived from a 1984 Supreme Court decision—which instructs that, when a statute is ambiguous, judges should defer to agencies’ reasonable interpretations of their authority. Last week’s Supreme Court decision in West Virginia v. EPA signals an end to judicial deference to broad agency actions. It reaffirms that the constitutional authority to issue the rules and regulations that govern our day-to-day lives derives from the peoples’ representatives in Congress and not from bureaucrats’ expertise. It also provides important insight into the motives of those who defend the power and prerogatives of administrative agencies. The 6–3 majority held that when the Environmental Protection Agency issued carbon emission caps designed to “substantially restructure the American energy market” in an Obama-era Clean Power Plan, the agency had exceeded the authority granted to it by Congress in the Clean Air Act. This was the latest in “a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” The EPA claimed that a rarely used Clean Air Act section authorizing the agency to determine “the best system of emission reduction” to minimize pollution from “each individual regulated source” allowed it to compel a system-wide “generation shifting” from higher-emitting electricity producers (coal-fired plants) to lower-emitting ones such as gas-fired plants or renewable sources like solar and wind. The EPA’s own modeling predicted that the plan would raise energy costs and prices, close dozens of coal-fired plants, and result in tens of thousands of job losses. The Court held that this case fell under the “major questions doctrine” that requires an agency to point to “clear congressional authorization” when it seeks to exercise powers of vast economic and political significance. In this case, as in two recent major-questions cases—one in which the CDC tried to shoehorn authority for a nationwide eviction moratorium into the Public Health Service Act and another in which OSHA claimed authority from a statute regulating occupational hazards to mandate Covid vaccinations for more than 80 million private workers—the Court could not find clear congressional authorization for broad agency action in the relevant statute. Justice Elena Kagan’s dissent reveals a deep distrust of Congress’s abilities and intelligence. “Members of Congress often don’t know enough . . . to regulate sensibly on an issue” and “can’t know enough . . . to keep regulatory schemes working across time.” Hence, she concludes, “Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.” Such reasoning begs the constitutional question: Did Congress authorize the EPA to remake the entire power-generating industry, or did it authorize it to regulate only individual emitting sources? Congress may be less well-informed than an agency, but our constitutional system gives policymaking authority and responsibility to the people’s elected representatives, no matter how expert administrative agencies may be. more at the link
It depends - if it's a Republican Congress or a Republican Department of the Interior then the original intent of the framers is yes to all - this is how it has worked in the courts most of the time for the last few decades. It's sort of like creating new rights like having a gun - like the Court did in 2008 - is fine but a morning after pill is murder and the right can be uncreated - like it did last month Congress can or can't do whatever 5 people say it can according to the current MAGAterian judicial maximalist view (unless it's the rare occasion where its the wrong answer and in that case ot can be ignored)
It wasn't entirely on stare decisis, but yes, that argument was the main one and I also think was the weakest one considering that every member of the court had previously voted to overturn precedent. I think the best argument is probably the privacy interest and the liberty interest. On the latter, just because ACB has 15 kids and sees pregnancy being carried to term ain't no thing, it really is a thing, lol. There are safety, health, and liberty concerns that I don't think she can objectively understand given her personal situation. I think the conservative legal movement found a perfect candidate in her regarding Roe. Regarding the former, it's a stronger argument that too many liberal justices cast aside. So what if there's no history or tradition? And the history part is disputed, as Alito cherry picked, similarly to what Thomas did with guns, though that legislative history criteria is not necessary and dumb imo to justify gun rights - there are better ways. But yes, privacy is a much stronger argument that needed to be hammered. Let's say the Texas Legislature, in all its wisdom, passes a new law that says it's illegal to do cartwheels. There's this rumor that cartwheels are the realm of atheists and gays and we don't want that in Texas. Does that violate the Constitution of the US? Is there a text, history, and tradition in the country protecting the right to do cartwheels? Absolutely not. But can it arguably be a US Constitutional right? Sure. F you, Texas Legislature, if you want to dictate and ban me doing cartwheels. I can do cartwheels. It doesn't matter if it's promotes gayness or the devil or evil spirits. It's my privacy to do it in my home and its my liberty to do it period. So to me, that's the strongest argument for the liberals, and the liberty interest that ACB would never understand. Plus Chief Justice Robert's dissent was strong too, in that he called out all the Justices for being self-righteous jerks. This decision should have been limited to the original complaint in his opinion - 15 weeks.
there are other things there I'd like to respond to as well, but this last paragraph is easiest. (A) I agree that ordinarily they should only rule based on the specifics of the case--here, as Roberts argued. But (B) I think Alito's stated rationale for "ripping off the bandaid" was extremely strong and well-stated. Clearly he was aware they could have simply ruled as Roberts advised, but Alito rather forcefully articulated the inevitable result of such a move: endless other abortion cases each of which would turn on a different point on the viability spectrum. I agree with Alito that it was better simply to rule that Roe was bad law, had been bad law for 50 years, and would no longer be bad law going forward. also, I don't really think Roberts implied the other five were self-righteous jerks. Misguided, perhaps, or politically tone-deaf, but not self-righteous.
I get that, except his reasoning is legally unsound imo. I get Thomas and to an extent, I get Kav. At least he pointed out that a majority of the states don't see it as a right, and there's the new minimum legal standard for overturning substantive due process. For Alito, Gorsuch and ACB, it's because they think an unborn baby is a baby, without straight forward saying that an unborn baby deserves rights. That's not legal justification. Thomas, though most liberals would hate it, has much stronger Constitutional backing for his position. And Roberts said it not just of the majority, but of the dissent. They all have a "relentless freedom from doubt that I cannot share." He's trying to stick to real traditional conservative jurisprudence - decide the issue at hand and move forward when a new issue comes up. "Reasonable time" or whatever his new standard would have been isn't so crappy. It's a way to balance a better stated dissent (privacy, liberty) vs. Kav's position. The majority is just pretext for personal values. They should have gone full Thomas, not that it matters in practical terms. It seems like in practice Kav will be the decider of all lines (same for guns...well, him + Roberts). By the way, I'm completing condeming the idiots (and mostly probably clinically insane) who made plans or threatened violence against Kav. But Kav is not the pyscho, lol. Not saying it should be done to anyone, but I'm just annoyed. It's like all the dumbass non-seamhead baseball fans that boo Altuve more than the Astros that actually participated. Like if you're going to hate on SCOTUS, then hate on the ones who hate you the most, not one of the dudes who is actually trying to not be so far one way or another.
I don't think you can make such sweeping generalizations about Barrett's "state of mind" based on her religion, the number of children she and her husband have, or whatever. She's a completely competent judge and a solid thinker. Evaluate her arguments on the merits rather than engaging in low end ad hominem. I don't find the historical review in Dobbs nearly as compelling as I do in the gun cases. I think that is mostly to satisfy the language of "long tradition" that the justices have pretty much previously committed themselves to. But the grain of truth behind that review is that abortion has always been a contested, controversial practice. Very difficult to root the "right" to abortion in history. Even more difficult to root that right under the logic of Roe. I have a respect for the court's attempt to return the act of legislating back to legislative bodies. Arguably that should have been done sooner--and had it been done sooner, there wouldn't be this collective sense of shock on the left that the judicial liberalism they took for granted has gone away and in fact was not some kind of gift from God handed down from on high. Progressives and others on the left must now try to convince others of the correctness of their positions.
She was picked specifically because of her age and her kids and her predisposition. She made early technical misunderstandings (I guess not a big deal bc Breyer has been screwing up as he's gotten more senile) that a more qualified justice shouldn't have made. Most importantly, her oral reflected and confirmed this exact bias. They all showed their hands during oral btw. Nobody pulled any surprises with their decisions. Anyhow, ACB multiple times kept saying that she didn't see a liberty interest conflict because there are safe haven laws! No duh, lol, because AC "I've been pregnant 15 times and I don't see that as a big deal" B doesn't see it as a big deal. To her, the liberty infraction isn't on the woman being forced to bring a pregnancy to term, but in the fetus because she thinks an unborn baby is a baby. Look, I understand and even somewhat agree with your stance on the final outcome, as the legal reasoning behind substantive due process incorporated via the 14th is murky at best. But it's naive to think that this wasn't a plan well executed by Fed Soc and the conservative legal movement. The dissent was okay at times and bad at times, legally. So was the majority opinion. Maybe Roe should be overturned, but this process was dirty and the reasoning was flawed. Edit: as for guns, there is a history of regulation, but it's mostly the states not wanting black people to have guns, lol. When I say the history doesn't matter it's because to me, it was clearly intended to become an individual right via the P&I clause of the 14th because that Congress wanted black people to be able to protect themselves from whites. End story. No more history needed.
again, more to comment on other things you say, but here I don't think ANYONE is arguing that this wasn't a plan well executed by the Federalist Society and conservative legal scholars. They've been working on this for fifty years. I'd say that definitely qualifies as a plan well executed. I'm re-reading Hollis-Brusky's book Ideas with Consequences. It's quite good, and by a very fair scholar who respects her subject and the people she describes even if she doesn't always agree with them. Quite a good read I think.
