101–110 of 191 posts
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Controversial opinion but I think we should all be reading way more primary sources and way fewer news articles.
Unless you’re a lawyer you should be reading articles by lawyers instead of trying to come up with cockamamie interpretations on your own.
The gist of the decision is that the SEC’s imposition of civil penalties and disgorgement violated defendants’ seventh amendment right to a jury trial. Under the seventh amendment, you have a right to a jury trial for any claim that would have been an action at law in the courts of England at the time of the founding, prior to the merger of law and equity.[1] There is an additional principle that so called “public ri…
Great summary, this is very fascinating. What are some of the likely impacts & effects this ruling will have over the long-term?
But the principle invoked in this case, non-delegation doctrine, is far reaching. The non-delegation doctrine is a theory, some might say a legal fiction, that says that Congress can’t delegate its power to make the laws, but can make a broad law and allow agencies can fill in details so long as Congress gives the agencies “an intelligible principle” for doing so.
This is not without basis—there is no obvious line to be drawn between Congress’s power to make laws, and the executive branch’s power to enforce them in a discretionary manner. There is nothing wrong with Congress making a broad law “fraud shall be illegal” and the SEC making rules for itself about how to enforce that. But clearly at some point executive regulation looks more like law making and less like an agency imposing guidelines for the exercise of its own discretion.
Historically the Supreme Court has been unwilling to police that line, but that could change. One thing I think you might see is greater scrutiny of agencies applying existing authority to enter new areas of regulation. The theory might be, for example, that it’s fine for the EPA to cut sulfur particulate targets, which clearly falls under the scope of the Clean Air Act, but that the agency needs new Congressional authority to do something like impose limitations on CO2 emissions, which involves a different problem than the Clean Air Act was intended to solve. There is already precedent in this direction, under something called the Major Questions Doctrine: https://crsreports.congress.gov/product/pdf/IF/IF12077
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It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any…
I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work. Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired P…
That's part of the problem. 435 is far too low for a representative democracy. The U.S. has the highest representation ratio among OECD nations[1]. The size of Congress has been held at this arbitrary number despite the size of the country growing threefold. The value of being in Congress, or being able to influence a member of Congress is enormous. As is the competition to get into one of those 435 seats. Is it any wonder big money controls so much of politics now?
[1] https://www.pewresearch.org/fact-tank/2018/05/31/u-s-populat...
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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ;
> in the time of war So are military courts going to close down since we’ve now ended the Afghanistan war? Or is that comma before “militia” going to mean that the time of war phrase is on for people who in a militia?
Findlaw (usually reasonably accurate) claims that is the case
> The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.33 The exception’s limiting words when in actual service in time of war or public danger apply only to members of the militia, not to members of the regular armed forces.
https://constitution.findlaw.com/amendment5/annotation01.htm...
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It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any…
I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work. Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired P…
But in any given year, at least 200 of them will be elected specifically for the purpose of ensuring that government does nothing at all. So the remaining ones go to extraordinary effort to achieve even the basics, and often fail.
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Unless you’re a lawyer you should be reading articles by lawyers instead of trying to come up with cockamamie interpretations on your own.
That's like arguing you shouldn't the read source for the software you use because you're not an expert.
And also, someone who doesn’t know how to code isn’t going to be able to make sense of the source so that particular type of Dunning-Kruger problem is self correcting with programming in a way it’s not with law (or medicine).
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> or public danger; Whether or not we're in a time of public danger is definitely up for debate, but you can't just leave off the second condition in an or statement and pretend it doesn't exist when trying to claim the statement is false.
Yea I’m on mobile so didn’t want to deal with full quote, it I assumed public danger meant like martial law. Do you know of any precedent on that part?
Incidentally I did find an answer to your previous question (about who the clause applies to), pasted it above.
Sets an interesting precedent for literally every other federal body that "acts as prosecutor and judge" while skipping the judicial system. Should everyone fighting an immigration or deportation case be able to request a jury trial? What about the military? Labor violations? EPA fines?
Not necessarily - this judgement is about assigning a punishment for a violation, which would generally require a trial; but immigration courts usually decide cases where whatever they judge is not a punishment but rather granting or denying a privilege, so their decision is legally fundamentally different even if it results in a deportation.
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> On a basic level this seems to make sense but the practical application of this would mean that legislators would need to explicitly pass legislation anytime a regulatory body needs to address a specific issue or regulate some behavior Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively…
> Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively unaccountable bureaucrats 1. Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former. If you don't like what the executive branch of the government looks li…
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I think implicit in your comment is that the New Deal must not actually be amazing because it turns out that it's likely unconstitutional but... how does that logically follow? It's not like the Constitution was handed down from the heavens as a flawless document. It may be that the New Deal does contain many unconstitutional provisions, but also that that same legislature was in fact a net benefit for Americans.
Processes were included to amend the constitution for this exact reason! Of course the framers knew that it was a flawed document.