It's not very well-argued, in that if regulation was pervasive since the founding as the author states, then what would unwinding something from the New Deal era accomplish in the grand scheme of things?
The Case That Could Destroy the Government
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Re: The Case That Could Destroy the Government
#12[deleted]
Re: The Case That Could Destroy the Government
#13I first heard about this a few days ago in a WSJ editorial Their take? Well, the editorial was titled "The Supreme Court Considers the Right to Trial by Jury", so, yeah, they considered it a good thing.
Then there's this, which is 20 paragraphs of scaremongering about fringe legal theories that will destroy the government.
Wikipedia seems to agree that it's about the 7th amendment and administrative law judges.
https://www.wsj.com/articles/the-supreme-court-considers-the...
Re: The Case That Could Destroy the Government
#14It's not very well-argued, in that if regulation was pervasive since the founding as the author states, then what would unwinding something from the New Deal era accomplish in the grand scheme of things?
New deal was about 90 years ago. It doesn’t seem believable that the ideal form of the US government was a situation from 90 years ago.
Hopefully this is a case where the ruling would be defacto recognition of the modern agency as a delegate of congress.
Re: The Case That Could Destroy the Government
#15This is partisan hackery.
For a more well-balanced account: https://www.scotusblog.com/2023/11/justices-to-consider-mult...
Note that the above link still takes the stance that the 5th Circuit was "bold" in its interpretation. However, unlike the OP, it clearly explains why, rather than spreading FUD everywhere.
Re: The Case That Could Destroy the Government
#16Well let's hope it goes better for the SEC than this one: https://newrepublic.com/article/158088/mr-sloan-went-washing...
Re: The Case That Could Destroy the Government
#17It’s better to read the SCOTUSblog coverage without the editorializing: https://www.scotusblog.com/case-files/cases/securities-and-e.... The issues in the case are:
> 1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
Reading newspaper coverage of legal cases is a wild ride. Imagine The Atlantic trying to summarize a contentious GitHub issue for some widely used piece of software. Joking aside, it’s worth addressing a specific point raised in the article:
> This is wild stuff. Not long ago, a lawyer would have been laughed out of court for making such nondelegation claims.
The non-delegation doctrine is not “wild stuff.” Apart from being inherent in the idea of three branches of government with distinct, separated powers, the Supreme Court explained back in 1928 that there were limits on Congress’s ability to delegate lawmaking powers to regulatory agencies.
It so happens that—under the threat of court packing—Supreme Court in the 1930s whittled separation of powers down to almost nothing. It is entirely permissible and appropriate for those precedents to be revisited. The thing is, it probably is unconstitutional to have these executive branch agencies that exercise the powers of all three branches of government: making regulations with the force of law, prosecuting people for violating them, and adjudicating those cases. Stare decisis is a discretionary doctrine. We’re not stuck with those old, wrongly decided precedents forever.
Re: The Case That Could Destroy the Government
#18It's not very well-argued, in that if regulation was pervasive since the founding as the author states, then what would unwinding something from the New Deal era accomplish in the grand scheme of things?
It would accomplish a Supreme Court precedent that would allow unwinding all the delegation of regulation and enforcement since the founding based on a partial reading of Madison and Hamilton (just the bits that extreme libertarians like without any of the "but also" stuff).
If that were to happen then all oversight of any company deals would fall to the specific whims of whomever the current US Congress might be .. time permitting, of course.
At the current scale of the US that's a recipe for any goes as there's too much going on for a small group tasked with running the entire nation to stay on top of (hence the introduction of delegation initially).
Re: The Case That Could Destroy the Government
#19The image heading this article shows traditional Greek-style marble columns toppling over as if they are rigid single objects. Greek columns can't topple like that because they aren't single objects. They are built of horizontal sections in a vertical stack. In Imperial Rome, the very most prestigious kind of column was a rather ugly type made of Egyptian granite. Columns like this were prestigious because they were…
The Doric columns in the Old Supreme Court chamber were monolithic marble.
I hadn't expected the visual metaphor to be so literally applicable!
https://www.aoc.gov/explore-capitol-campus/buildings-grounds...
Re: The Case That Could Destroy the Government
#20It's not very well-argued, in that if regulation was pervasive since the founding as the author states, then what would unwinding something from the New Deal era accomplish in the grand scheme of things?
New deal was about 90 years ago. It doesn’t seem believable that the ideal form of the US government was a situation from 90 years ago. Hopefully this is a case where the ruling would be defacto recognition of the modern agency as a delegate of congress.
It would seem most likely that some things were ideal 90 years ago and some things are ideal today. In other words, it's not that government or society gets better over time in all vectors. Certainly it regresses on many of them over time, and some things suffer from atrophy and entropy, even things that may have been a good idea at the time may no longer serve their intended purpose, or may hold society back on some vectors due to over investment in programs designed decades ago.