What’s interesting about this ruling (if you listened to the oral arguments and read the ruling) is that it appears to undercut the ability for any executive agency to make a rule, under them claim that congress cannot delegate its powers.
So the FAA can’t determine and then require that aircraft have transponders. Congress has to do this.
I don't think this is correct. Congress can definitely delegate its power, they are just saying that Congress didn't delegate the power the EPA is trying to use in this case.
From the final paragraph of the opinion:
"But it is not plausible that Congress gave EPA the
authority to adopt on its own such a regulatory scheme in
Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."
So it seems that Congress can still give the EPA a more clear delegation that they have this power.
How do you write an entire opinion about delegation without mentioning Chevron? As the dissent points out, that delegation is inherently required to do the EPA's job and the court has previously accepted their technical and policy expertise in this area.
You would think they would have reversed Chevron, or distinguished it. But note, I've not read this decision yet, and I'm taking your word for their not mentioning Chevron.
I wonder if the conservative majority will use these recent decisions as precedent to overturn Chevron in what would be another shocking and shameless display of legislating from the bench.
I don't agree it will be chaos. Congress has for far too long abdicated what it is supposed to be directly responsible for to unelected bureaucrats that exist in agencies that are overseen by the executive branch of government.
Congress is now free to focused on creating chaos between the people that elect them. When is the last time you've seen anyone from Congress campaign on any substantive issue? I've not seen it in my lifetime they leave that campaign up to the president. Congress is invested with the sole power to regulate our money when is the last time you've seen them do anything except throw up bloated budgets? They have completely advocated that power to the Federal reserve of which they exercise zero oversight of and apparently leave it to the president who also lets it run autonomously.
So what you call chaos is reconnecting the actual responsibilities of our elected representatives with their duties. I for one would very much enjoy seeing my elected representative actually doing their constitutional duties instead of pitting citizen that one another's throat in order to get reelected again.
have you met any congress personnel? fence posts would be insulted to be compared to some of them.
there's definitely a gap between regulatory officials making regulations and legislature codifying the details. This is where appointing heads of those departments is supposed to come to bear.
It's a mess, but the answer isn't to let lobbyists and special interests burn the house down.
The right answer here is that Congress explicitly delegated a decision to the EPA administrator, so they should be allowed to make that decision. The court's decision is well-argued, but it seems to come down to "I know Congress said you could do this, but it's a really big deal and they might not have thought it through enough, so you have to go ask for permission again before you do it". It's kind of patronizing to both the EPA and Congress, and I don't think it's a good decision or precedent.
The majority of people don’t want to allow abortions at 36 weeks, but they also don’t want abortions completely banned.
So there is a democratic debate to be had about where in the middle the non extreme two sides could meet. (In Europe there is no debate about abortion and most countries allow it to 12 weeks).
Better to have a debate and both sides compromise than some court deciding on one of the most extreme views. The Supreme Court didn’t ban abortion, they did however allow it to 36 weeks for decades.
What they did do last week is say: hey guys, it’s a federal democracy, why don’t you fucking debate it and legislate it somehow where both sides can agree, as is normal with divisive issues in a democracy
Even RBG said that Roe v Wade was on shaky ground as a legal precedent.
And what people don’t realize is that if Roe v Wade wasn’t overturn the next ruling discussed was allowing further restrictions by states, further eroding the precedent.
The alternative was just kicking the can down the road until the next challenge.
I understand your point, but at the same time, I don't want the same "it is like a series of tubes" guys mandating some airplane technology pushed by the highest campaign contribution either.
I have a degree in computer science and a couple decades of experience with software development for, and deployment on, the internet.
I think the metaphor of comparing internet bandwidth to pipes/tubes carrying water is perfectly apt. It seems like a very simple, direct and effective way to describe issues of bandwidth, connectivity, congestion and overall infrastructure.
I've never quite understood why we all pretended like that was a bad analogy. I guess just because it came out of the mouth of an old, white Republican.
It's because his delivery of that analogy came across as unhinged and shouty, and he posited that emails from his staff took days to arrive because of Netflix.
There’s a million nuances in it, rape, incest, medical reasons, and the time of abortion.
The abortion debate doesn’t exist in Europe because almost all sides managed to agree on a 12 week limit and it’s left alone.
I would guess in 10-20 years the US would arrive at the same conclusion, with small differences between red and blue states.
Stop making this a yes or no issue. And that’s not what the Supreme Court did. They didn’t ban abortion. If 60% want abortion legal they can vote for whoever gives them that.
Tell this to the states passing anti-abortion legislation. They seem to view it as a binary. At a minimum, the burden of proof for exceptions is high with the penalties being life in prison in more than a few states.
In Germany's last election, a major issue was about removing a clause disallowing "advertising" abortions. It remains controversial that people seeking abortions have to get extensive psychological counseling from an extremely limited number of therapists before getting an abortion.
In Poland abortion is banned entirely and they are about to start keeping a pregnancy register.
Ireland and Spain also have ongoing debates about the particulars of their laws, with Ireland having just legalized it all in 2018!
The GOP are going to immediately nuke the filibuster and ban abortion at the federal level if they control the government after the next election. Pence has even said this out loud recently. It will likely make no exceptions for rape or incest either. The majority of the country is against this.
> Abortion isn’t 0 or 1, legal or not legal.
As others have already pointed out below, and I already mentioned, over half of states are ready to enact total bans. The repeal of Roe doesn't make abortion illegal, but it does make a _ban_ on abortion legal, which is exactly what is happening.
> I would guess in 10-20 years the US would arrive at the same conclusion, with small differences between red and blue states.
This data visualisation [0] highlights the problem with this approach.
This isn't an issue where you can sit back and contemplate it as some abstract exercise of democracy. So many women will die, or be persecuted during that 10-20 year span you mention and it is completely needless. No one should be adopting a "it'll all work out in the end" mindset.
Yeah, except you are taking a political or moral stance right there, so it’s not fair to the rest of the population. Many people believe you are saving many lives in those 10-20 years.
The actual problem is a poorly educated voting population being manipulated into voting against their interests to support corrupt career politicians that behave in effect like medieval lords.
> Over 60% of the US population think abortion should be legal. More than half of US states are (or are very likely) to institute abortion bans.
Could it be that a majority of the population in those states are against abortion? Wouldn't
Why should this be regulated at the federal level?
I'm pro-choice but I can understand that some people believe life begins at conception and therefore abortion is murder. If a majority of people in a state believe that, isn't it democratic to let them make laws accordingly?
Due to things like the electoral college, gerrymandering, vote suppression tactics, and senate representation to name just few, the US is not very democratic. Nor can these be fixed under current conditions because of the above list.
They do. The people get equal representation under the house. The states get equal representation under the senate. This is a feature to control populist movements as well as protect states' interests (which are also composed by the people, but this separate ensures that the culture of one set of state will not be imposed over the other set).
The senate does not give people equal representation - regardless of the motivation for having it, this is objectively true.
You can say that you like a system that has this feature for states or it has certain other benefits and so on, but you can't say that it is equal representation because it is not.
As I said, the house gives people equal representation. A bill will not become law without passing the with through representation of the house. The only limit is that some things the house wants won't pass because the states don't agree.
If you truly want equal representation, then we have to go the direct democracy route since you will not have equal numbers of people under each representative. You also need to get rid of appointments by the executive (including rule making agencies), closed primaries, and provide universal voting including for felons and non-citizens.
So what is this argument for equal representation across the board? I don't see any benefit other than if you want populist movements to succeed based on the whims of the day and potentially at the expense of the minority rights (even more so than today).
The main point here is that state representation was necessary in order to create the country, and is likely necessary for the country to continue. I don't see any argument that supercedes this so far.
I understand how it works, and you agree that the senate does not provide equal representation for people, only the states. I'm not suggesting that the numbers for each representative be exactly the same because that's not achievable in practice. What I am saying is that the current system is much less democratic than it could be if either there was no senate or it had proportional representation. You may think that would lead to chaos, but I disagree.
It wouldn't lead to chaos. It could lead to states leaving the union if the senate were dissolved. It's happened in the past when states didn't want to be trampled and the divide seems large today.
But what is the objective benefit to removing the senate? The argument I'm hearing is just that it could be more democratic, but there are many changes that could make things more democratic. Some things are about fairness, like gerrymandering. But I don't see any benefit to removing the senate.
Laws like something that could curtail the worst of gerrymandering will never be passed because of the senate. The people that benefit from unequal and unfair representation will never vote to change them. Those people largely sit in the senate unequally representing the people that want positive change.
"Those people largely sit in the senate unequally representing the people that want positive change."
I thought we already covered that they represent states, not people.
By the way, what bill would they pass that would fix gerrymandering? I thought the states had the authority to draw their districts and it can be contentious as to what a good fix is.
And of course we have the same logic on the other side - that a party in power will do what they can to add to their power. We see that with laws about non-citizens voting (struck down), restoring/giving voring rights to groups that would disproportionately support them, and such.
> I thought we already covered that they represent states, not people.
We did, and that's the point.
> what bill would they pass that would fix gerrymandering? I thought the states had the authority to draw their districts and it can be contentious as to what a good fix is.
There is no bill, also my point. Also, it's only contentious to those who are deliberately attempting to gerrymander.
> that a party in power will do what they can to add to their power.
I agree with this part, its also my point; that is, undemocratic processes are self-perpetuating and self-strengthening.
> We see that with laws about non-citizens voting (struck down), restoring/giving voting rights to groups that would disproportionately support them, and such.
Interesting that that all your counter examples here are about giving people rights to vote. People having the right to vote is fundamental to democracy. Seems your view on democracy is of the 'only the right sort of people should be allowed to vote' variety, pun intended.
Then why are you misrepresenting it to mean something that it doesn't? Only one house is meant to represent people.
"Also, it's only contentious to those who are deliberately attempting to gerrymander."
Maybe for the general idea. But I can see implementation ideas being contentious. That's my point - the solutions are likely to contain biases, and there's going to be opposition to that.
"Interesting that that all your counter examples here are about giving people rights to vote. People having the right to vote is fundamental to democracy. Seems your view on democracy is of the 'only the right sort of people should be allowed to vote' variety, pun intended."
Please name a democracy that has unlimited voting rights. All democracies have some limits. Requiring that someone is a citizen is a damn low bar. Losing rights for felonies can be debated, but that's not too uncommon either. The purpose of those most basic restrictions is do that society does not become influenced by the criminal elements (you're banned from office too) or from outside influence. And guess what, those restrictions were democratically implemented. So please stop with the attacks and more righteous than thou attitude. Please state some argument beyond "fundamental".
>Then why are you misrepresenting it to mean something that it doesn't?
I didn't mispresent anything, I've been consistent and clear about my view of the senate.
>Please name a democracy that has unlimited voting rights.
It's not my position that voting rights should be unlimited. I was only pointing out that your own list of bad things were all about giving people who don't have a say about the government whose rules they must live by, a say in that government by vote.
>The purpose of those most basic restrictions is do that society does not become influenced by the criminal elements
This is historical laughable, the purpose of most restrictions is to limit the vote of marginalized groups, usually by race. For just one example, Step 1: Pass laws making weed a felony. Step 2: Focus all law enforcement efforts on marginalized groups smoking weed but let the kids in suburbs and college dorms smoke all they want. Step 3: Harshly punish marginalized groups by making them felons. Step 4: Strip them of the right to vote.
A person in Wyoming doesn't have equal representation in the house as a person in California, by quite a large margin. The house is not representative in practice.
As I said in another branch of this conversation, the use of the filibuster on nearly all bills of any significance (budgets and confirmations aside) in the Senate (and the chilling effect it's had on even bringing other bills to the floor) means that states are not represented equally either. The most obstructionist states have substantially more legislative power than the ones that want to actually pass bills. This is obviously more abstract, but it's pretty clear that in practice states are not equal in the senate.
The other states also have the power to filibuster things they don't like. This is feature not a bug. We want to fail open (liberty). The way to do that is placing safeguards that make it harder to pass laws, as they are generally imposing restrictions. The passage of any law will negatively affect some minority, the point is to make that group small and avoid straight partisanship via a modest supermajority.
Yes, there are some outliers and discrepancy in the number a representative represents. It probably should be adjusted.
I hope it's uncontroversial that, say, blocking a bill to ban slavery is not "failing open," for example, and the persistent effort to prevent slavery from being banned led to many failures in liberty?
When your main bulwark is making it hard to pass bills, all you've really done is make it so that the status quo is powerful. The status quo is not, by default, freedom.
Yes, point in time the status quo may not be the most free. The point is that starting from a more free point (the beginning) there were fewer laws that there are now. By having g that protection, how many additional restrictive laws have we prevented? The laws on the books are predominately restrictions, not freedoms/rights. So on a whole, it seems beneficial, even if there have been failings (we can say that about almost any institution).
> how many additional restrictive laws have we prevented
I mean, we will never know. Any answer to this question can only be speculation. I could as easily ask "how many expansions of freedom have we prevented?" And in this moment of political time I think there are at least a few. But that's also just speculation.
In theory it's supposed to be the constitution itself that prevents these abuses, not the crude instrument of legislative gridlock that prevents all change good or bad, especially in a moment like now or before the civil war where the two dominant political forces can't even see eye to eye on basic structures of power.
Much like, to bring it back to the original point, the Senate is already an unrepresentative body, it does not need the procedural filibuster (a unique creature among legislatures as it exists in the us Senate afaik) to make it one.
The speculation is supported by the numbers - restrictive laws far outnumber rights affirming laws, and thus it would on the net prevent more restrictions than freedoms. Especially since the structure of law is that are not unlawful tend to be legal.
The constitution is supposed to restrict what abuses? There's basically nothing preventing further restrictions in freedoms on many topics. Because the constitution is generally vague and conceptual, the courts have a lot of leeway to allow restrictions, even on well defined rights (rights are not absolute). There's little interest in calling a convention or otherwise amending the constitution it seems.
The senate is a representative body, for the states. The filibuster ensures that controversial bills pass with more than a simple majority. This is a feature which helps ensure that the affected minority is relatively smaller, protects states rights (it's up to the states if the feds dont regulate in moat cases), and help prevents waffling after every election that changes the simple majority.
Senate representation is one thing. Requiring a supermajority to pass anything in an already unrepresentative house is just ridiculous, and absolutely does diminish the quality of "democracy" the US has. Especially considering the US house isn't particularly representative either, due to a combination of an absurdly low representative cap and gerrymandering.
The US is certainly more democratic than it was at its founding, when neither the president nor the Senate were entirely directly elected at all, but it's not even close to as democratic as most Americans appear to believe it is.
I assume you're just talking about the filibuster. What about the other super majority votes like ratifying treaties? Also, they could use budget reconciliation to pass a few things to bypass the filibuster.
I think many Americans have been calling it a democracy for shorthand and people forget that it's an adjective for "republic".
Imo, "it's not a democracy it's a republic" is a pretty empty statement, because there are no pure democracies (and they are likely to be completely impractical anyways). It seems to be a weird meme among Americans that hints at some kind of exceptionalism, but has very little in the way of practical implications.
For the most part, everyone in the world means approximately the same thing an American does when they say democracy ("a representative constitutional democracy, probably with some degree of regional federalism and bicameralism"). The US neither resembles a pure democracy or the republic the founders created at this point anyways, so it doesn't really matter. These terms are pretty fluid.
Pure democracy is basically never the goal anyways. It's not a bad thing for a system of government to be not entirely democratic, there do have to be checks on pure majoritarianism somehow, but the particulars of the US' democratic lacks seem to be both worse than most Americans imagine them to be, and also far more vestigial if not accidental than they ought to be (many were really there to help uphold slavery and/or prevent reconstruction from fully succeeding).
At this point, the net effect of the US' democratic failings is to create a tyranny of the minority, which can hardly be considered a better failure mode than a tyranny of the majority.
"At this point, the net effect of the US' democratic failings is to create a tyranny of the minority, which can hardly be considered a better failure mode than a tyranny of the majority."
Any source fir it only being tyranny of the minority? I see examples of tyranny of the majority too.
Tyranny of majority is an apt summation of the problems facing Nom white peoples but is not accurate when applied to religious groups seeking to impose their regressive theological practices on everyone else. That is in fact fascist and unconstitutional. Weaseling around these intents is a tired tactic of the radical right that they’ve been using for decades to sway the opinion of their poorly educated constituencies.
No you don’t understand, being more democratic in the abstract is more important than actual rights being stripped away or retaining the bare minimum environmental regulations on companies that are destroying the planet.
It’s sad how the flimsiest well-actuallys carry so much weight around here. Anyone making arguments around recent decisions being democratic has their head buried in the sand about how blatantly undemocratic the US has been since its inception.
Processes were followed and have been for generations. SCOTUS is just flipping the table over now for the benefit of biggest polluting industries, not the citizens, country, or the rule of law.
It’s only “clear” for people who accept paper-thin legal logic from a court with an obvious agenda. It’s only clear if you’re willing to slide down the slippery slope of the court stripping authority from all federal agencies they don’t like with the logic that the legislature needs to codify every email sent by an agency.
If you don’t like the EPA just say so, but please stop pretending like the Supreme Court is some real arbiter of logic and constitutionality. It has always been (even during liberal courts) an unelected political institution that justifies huge legislative changes with high-minded philosophical hand waving. Occasionally they throw in civil rights decisions for good PR with their aligned base, but even that’s on the chopping block with the current court.
The idea that Republicans are seeking increased states' rights in good faith is contradicted my most available evidence. Not only have they fought legalizing weed federally, but right after the Roe v. Wade ruling we had Republican politicians advocating for a federal abortion ban[1].
Believing that these ruling will make things more democratic requires ignoring what Republican lawmakers both say and do.
A group of Republican lawmakers introduced a bill Monday to federally decriminalize and tax marijuana, adding an alternative to sweeping Democratic proposals for major marijuana reform and narrow GOP-backed efforts to deschedule the drug in the U.S.
> The States Reform Act has garnered attention as the first prominent bill sponsored by a House Republican to end the federal prohibition of marijuana, which could help give the proposal some political advantage in its efforts to secure bipartisan support. Congressional Democrats have previously introduced various marijuana legalization proposals, including the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, and currently have draft language for the Cannabis Administration and Opportunity (CAO) Act. At this time, however, many observers believe neither of the proposals being led by congressional Democrats will be able to secure the necessary Republican votes for passage in the Senate. Any marijuana legalization proposal would need to secure the support of at least 10 Senate Republicans in order to overcome a potential filibuster.
"A small group of Republicans has finally seen the light at a time they've no power to pass legislation, and it'll fail because of Republican opposition in the Senate" is not quite "The Republicans sponsored a bill".
Come on. The parties aren't monolithic, and the Democrats have a majority in Congress, but they can't pass anything either. Would you say the Democrats against legalization too?
Congress writes laws vague enough for the experts to implement the policy. It's always been this way. It will be total chaos if Congress has to explicate the specific.
They are not. Even if we assume congress wasn't a complete gridlocked mess, they simply do not have the bandwidth. There 535 Members of Congress and they work less than 200 days a year in a typical session.
How many regulatory bodies are there that need rules passed? I can think of the FAA, FTC, EPA, FDA, USDA, and the NRC just off the top of my head. A quick google search shows there are 19 of these rule making agencies. Even with a wide distribution of rule making authority, these agencies struggle to keep up with our rapidly evolving world.
Forcing congress to hear and make a decision on every single regulation these agencies propose would be a bottleneck that brings this country to it's knees.
They have no obligation to actually show up. Many miss more votes than they are present for.
Also, most sessions only run a few hours, and many more are pro forms, where the minimum quorum show up (I think this is something like 15 or 20), open the session and then immediately close it.
> There 535 Members of Congress and they work less than 200 days a year in a typical session.
Sure, Congress is in session for about 200 days, and even when it is the elected officials aren't typically on the floor for the full day. But that doesn't mean that when they aren't on the floor they aren't necessarily working. They could be meeting with constituents, with their staff, reading bills, going to committee meetings, just meeting with other reps/senators etc.
Congress members bring snowballs to the floor as evidence that climate change isn't real. Some of this behavior is due to personal beliefs, but there are other factors:
So due to the ignorance and corruption among conservative lawmakers regarding climate change and carbon emissions, congress has been in an ideological deadlock on the issue of climate initiatives. The EPA existing somewhat independent of that framework was a benefit.
1. Dunning-Krueger or, in other words, Congress probably thinks they know better.
2. Politicians, per definition, are elected to represent the interests of their constituents. Many constituents disagree with experts (climate change, for example). QED, there is little motivation for politicians to listen or follow the advice of experts, especially if an expert's conclusion is not popular.
So they should prepare law novelization for cabinet, cabinet should push it to legislature, and legislature should vote on that. Like in any other country.
> Congress has for far too long abdicated what it is supposed to be directly responsible for to unelected bureaucrats that exist in agencies that are overseen by the executive branch of government.
Yes, that's what the executive branch is for. That's how our government and basically every government in the history of the world has worked.
> When is the last time you've seen anyone from Congress campaign on any substantive issue?
Literally every campaign in my life that I've had any exposure to. Campaigning on real issues is not hard, the problem is getting into Congress and then being unwilling or unable to follow through.
That is silly hyperbolic overreaction. The court literally upheld the EPA regulating greenhouse gasses at the point of creation. It upheld the specific regulations how coal was burned. All it said was the EPA wasn't empowered to move into grid management schemes. If congress wants to grant them that power, it can.
I read this differently (and am a former lawyer who worked on administrative law). This is about the "major questions doctrine", which involves a subset of administrative actions. It's not about whether administrative agencies can do anything whatsoever.
> Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.
The reasoning for this is that:
> We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies
I didn't see the claim that they can't delegate. The issue I saw discussed is whether or not a specific power was delegated. I don't see rhem invalidating all agency regulations. I do see them requiring better definitions to support that regulation. (Eg C02 was not considered a pollutant under the original grant of power, so the court doesn't want to interpret it to be inclusive).
So the FAA can’t determine and then require that aircraft have transponders. Congress has to do this.
If they continue down this path it will be chaos.
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