We Just Witnessed the Biggest Supreme Court Power Grab Since 1803
thenation.com
thenation.com
It's a curious take. My understanding is that it is curbing the ability of the executive to issue laws (by calling them regulations), ie congress is not allowed constitutionally to delegate its law issuing powers away. So the power for the executive to issue new laws has to be extremely limited. State agencies officials are as unelected as judges. Congress cannot vote that an agency can issue any rule it wants for the environment for instance.
I know it is frustrating to have to go through congress to make changes but that's the very definition of democracy, the progressive accumulation of power in the hands of the executive is not.
What the SC just said is in the case of ambiguity, it's a coinflip how it'll go based on the whims of the court you land in (or more accurately, which one you bribe)
It's neither reasonable nor feasible for Congress to make fully thorough and ambitious-free laws for regulators to enforce. That line of argument is in bad faith, there's no "returning authority to Congress" here.
A judge who habitually makes bad calls and clutters up the docket is going to get a lot of attention, real quick.
More power to the court == power grab, this is pretty straightforward. Especially when combined with the decision that judges can be legally bribed.
We have generally unqualified representatives drafting ambiguous regulatory laws that then need to be interpreted by some entity, whether the courts (whose expertise is law) or the agencies (whose expertise is not law).
There are two related difficult problems in governance models: entrenched bureaucracies and security services. Specialized tasks that require professionals who can naturally form a political block and subsequently political will and clout. However their responsible roles are by definition 'professional'.
I think we need to start thinking of a more modern political structure, specially in light of communication and information technology available. This debate over who is overreaching and who gets to get bribed or what ideological faction will get to interpret is a futile endeavor.
The core issue is 'legal and political consensus that is informed by expert insights'. As an example (to get you thinking) more 'real-time' engagements between different branches of the system could address all of the issues that SC or its decision opponents are arguing about.
Any political structure is going to fail when you have a duopoly. One side decides to not play "fair" and bam, everything falls apart. You need to avoid any individual party having full control in the first place. Then the checks and balances can actually function.
"While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.
With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent.
With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism."
Nothing whatsoever was returned to Congress.
There's no atomicity to "kick back to Congress" and Congress always had the power to override agencies regardless. This is 100% unambiguously a power shift from agencies to courts. The opinion literally stated as much:
> Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.
- Chief Justice John Roberts
If something cant be written into an actual law, maybe the law shouldnt exist? Why must we err on the side of regulation? Congress is supposed to be doing its job representing voters and writing clear bills, not writing fill in the blank laws. Make those you vote into office accountable for their responsibilities.
This sounds nice but it doesnt work. Americans widely despise congress but like their own representative. Telling voters "make your representative accountable" will not fix anything. I would like for congress to be an effective body that is able to pass laws that are widely popular, but we can all see that that just is not the reality we are working with.
Maybe because they can get away with not doing it because of chevron?
This insistence that it's now about Congress being in charge is just gaslighting. Congress was always in charge. They were in charge under Chevron, too. This is about moving power to the courts and away from experts, plain and simple. It's logically unsound and a complete joke of a reasoning in the majority opinion to justify it. And again the SC itself literally said the goal was to move power from agencies to courts. Insisting otherwise is just willfully ignorant at best, outright propaganda at worst.
And literally one of the first uses of this new ruling was to strip the EPA of its ability to regulate environmental impact: https://www.forbes.com/sites/alisondurkee/2022/06/30/supreme...
Societal health and well being is being stripped and sold to profit the rich by letting corrupt courts decide matters of expert nuance.
Who's experts are these? The ones I agree with, or the ones you agree with?
As in, the doctors the FDA employs would be the ones primarily driving decisions like "is this a drug? is it safe?" rather than the politically appointed judges who are categorically never experts in these questions as they have no education on the matter and are not expected to have education on the matter.
Whether or not you believe them or agree with them is largely irrelevant.
There is the political issue that the heads of these agencies tend to change political hands every 4-8 years, but moving all decision making to appointed judges is certainly not a step towards addressing that problem in the slightest.
You might want to look more closely into that one.
(Trump also plans to redo Schedule F, dubbing most appointees as political, and thus capable of being fired at will.)
The attempt to normalize & justify a massive rebuilding of our government like this is mind blowing. Shame on the many many many comments pretending like this is ok, like it's fine that we don't let agencies do anything at all, that ever single bit of the law has to be passed by Congress directly, without any delegation whatsoever. Congress does not have that capacity! It's impossible to imagine.
The Supreme Court had to throw on a "oh but pretty please don't use this to dismantle everything we have, respect stare decsis — that this is how we've governed in practice forever, through delegation." The new way is something entirely new.
These radicals are de-governing this nation, are tearing down the ability to do anything. This is a day of true horrors.
The power grab that was done was with Congress abdicating their power into unelected bureaucracies to create and enforce rules with the force of law. What the supreme Court is saying is that Congress cannot abdicate their power into an unelected bureaucracy. Congress can pass laws and the president can have people enforce those laws but those laws cannot be so broad as to say this unelected enforcement agency can literally write new laws in the form of regulations and then enforce them as if they were law without any kind of recourse. That is a fundamental violation of due process to say some agency was empowered with such broad authority and such broad scope that they can literally write any rule that they want and you must follow it.
To limit the agencies to actually enforcing the law that Congress passed and requiring that those laws be specific enough that they are not open to broad interpretation and redefinition is the opposite of a power grab. It is the limitation of unelected bureaucrats in their power. If Congress wishes to re-empower them they simply need to pass the laws. Those experts, as they claim in the article, have within their power to suggest new legislation for things they want to implement. Having them just be able to arbitrarily make any new rule that they want under a broad umbrella of you are empowered to protect the environment is akin to a dictatorship.
Can you be entirely sure that you are not subject to the same faults that you see in these people? Do you think they might see the same effect in you?
So when investors delegate to the officers of the company the authority to write company policies and procedures, do you also consider this a power grab of some kind?
It makes sense IMO that orgs like the FDA or EPA regulates health safety issues instead of politicians.
Does this block that from happening?
Especially concerning complex topics such as EPA and FDA. People (voters) don’t understand these topics and neither do politicians. So how can we expect politicians to regulate these complex areas?
Sounds like corporations will just start to own the laws that are being passed even more.
Which promotes further consolidation of power and detrimental health effects for the population.
If the FDA said no, Valvoline cannot use a specific additive to their motor oil, we would all scratch our heads and say that's not the FDA's job, and they don't have the authority to do that. Under Chevron deference the courts would defer to the FDA and say yes, they have the experts to decide these things, who are we to second-guess the regulatory agency?
With this Supreme Court decision, courts will no longer automatically defer to the agencies.
Chevron deference says that when the delegation is implicit but not explicit then you defer to the agency. So in the FDA example, there is no implicit authority to regulate motor oil.
What this ruling changed is exactly that Congress now does need to be exhaustively thorough otherwise the courts decide the matter, not the agencies
> The power grab that was done was with Congress abdicating their power into unelected bureaucracies to create and enforce rules with the force of law. What the supreme Court is saying is that Congress cannot abdicate their power into an unelected bureaucracy.
If you're talking about Congress giving power it doesn't actually have to an organization, then that's a totally different thing. It is not what I was talking about.
You mean, like the entire court system including the supreme court is?
The courts interpret Congress' laws and they aren't elected. So using your same logic then instead every question of law should be put back to Congress to clarify.
That sounds like a great way to ensure nothing ever gets done, right? Kinda like that's exactly what the supreme court's decision is counting on - a giant ddos against government agencies, crippling all regulations that stand today. It's absolutely a power grab and it's absolutely unjustified as it goes against what Congress, the one in charge of this area, wants.
After all, congress was just overridden by an unelected 3rd party. A clear farce and a bad joke if it wasn't real life.
There is nothing in the Constitution forbidding delegation of implementation decisions from Congress to Executive. Therefore it is legal.
And if for some reason this is the one exception to the way our legal system works, where the lack of express permission means it is forbidden, isn’t it odd that the courts have the power to make this decision despite not having a written mandate.
This is absolutely a power grab, with the intent of “breaking the administrative state”, as Steve Brannon promised. It is not possible for 438 people to legislate the implementation details of every policy in the entire country on an ongoing basis. This is basically Make Rivers Flammable Again.
Citation needed. Separation of Powers would like a word with you.
Note that the phrase “separation of powers” does not appear in the Constitution.
Law as it applies to the conduct of people and organizations works this way in the Anglo common law world, yes. The constitution specifically and clearly states that the federal government is constrained in it's power to only those powers expressly outlined in it, and which branches have what powers.
This is from the article. And I think you missed it. There's a chain of command and there's oversight and apparently, The Supreme Court wants to be at the top of both, like Putin and the likes. It's as bad for the USA as Putin is for Russia.
This seems to be advocating the latter .. strange.