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Thread: The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed

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    Chris's Avatar Senior Member
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    The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed

    Unconstitutional? No kidding. About time the administrative state is challenged.

    The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed

    ...For the better part of a century, the Court has permitted Congress to delegate broad policymaking authority to federal agencies. The Court has not struck down a statute under the non-delegation doctrine since 1935, when a conservative majority was hostile to progressive New Deal measures aimed at protecting workers and consumers. Since then, the increasing complexity of modern industrialized society has made it obvious that—even when Congress is not as dysfunctional as it is now—it’s not possible for Congress to legislate the technical details necessary to regulate the environment, health, safety, labor, education, energy, elections, discrimination, housing, and the economy.

    As a result, executive agencies create regulations and implement binding policies. That has long been understood as both necessary for the country to function and consistent with the Constitution. The Court has applied a test: if a statute gives an agency discretion that is sufficiently constrained by an “intelligible principle,” then Congress is not unconstitutionally delegating legislative power. But many conservatives complain that that test has been applied in a lax way, so that any statute delegating any scope of authority appears to satisfy it. For example, the Court has repeatedly upheld statutes that give agencies only general guidance, such as to regulate in the “public interest,” or issue air quality standards “requisite to protect the public health.”

    In Gundy, all four liberal Justices, in a plurality opinion by Justice Elena Kagan, hewed to the prevailing approach, finding that Congress provided enough guidance limiting the agency’s discretion to pass constitutional muster. Three conservative Justices, in a dissent by Justice Neil Gorsuch, said that the law impermissibly gave the Attorney General “free rein to write the rules,” and was unconstitutional. Justice Samuel Alito cast the deciding vote that enabled the liberals to prevail this time, but his three-paragraph concurrence made clear that the victory may be short-lived. He said that if the majority “were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A conservative majority was lacking here because of the absence of Justice Kavanaugh. Next time there’s a similar case before the Court, his vote will make for a different result.

    We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies. What’s at stake is the potential upending of the constitutional foundations of the so-called “administrative state.” Today’s reality is that agencies, not Congress, make most federal laws. As Justice Kagan put it, if the delegation in Gundy were unconstitutional, “then most of Government is unconstitutional.”...
    Edmund Burke: "In vain you tell me that Artificial Government is good, but that I fall out only with the Abuse. The Thing! the Thing itself is the Abuse!"

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    Although the dyke Justice from Harvard is probably shocked by it. The fact is most of the Federal Government IS illegal!
    "Don't piss down my back and tell me it's raining"----Fletcher in The Outlaw Josey Wales

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    Quote Originally Posted by Chris View Post
    Unconstitutional? No kidding. About time the administrative state is challenged.

    The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed
    FDR's coup may be reversed. Good.
    Call your state legislators and insist they approve the Article V convention of States to propose amendments.


    I pledge allegiance to the Constitution as written and understood by this nation's founders, and to the Republic it created, an indivisible union of sovereign States, with liberty and justice for all.

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    Quote Originally Posted by Admiral Ackbar View Post
    Although the dyke Justice from Harvard is probably shocked by it. The fact is most of the Federal Government IS illegal!
    You have to be more specific. There are at least two "dyke justices", three if you count Roberts .
    Freedom Requires Obstinance.

    We the People DID NOT vote in a majority Rodent Congress, they stole it via election fraud.

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    Good
    Any time you give a man something he doesn't earn, you cheapen him. Our kids earn what they get, and that includes respect. -- Woody Hayes​

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    And where are we now?
    Tickling censorship with a feather.

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