Absolutely correct. There is a process for writing laws. There is a process for amending the constitution. But instead of building a broad coalition to go and do these things they would rather roll the dice with the judiciary. And when they lose try to change the judiciary. Completely wrong headed. We need to get our legislature working. We also need people to realize that living in a democracy means that you don’t always get your way.
100%. We need to stop treating the judiciary as if it were royalty, and instead operate the government using the established rules for change.
That means forcing Congress to accept its role and do its job instead of being a place where the members spend most of their time fundraising and trying to keep their seats.
Yeah, I don't know. Congress is so completely and utterly broken that I'm unsure it can be fixed.
Legislating from the bench is better than the administrative rulemaking in that it's at least generally more stable, but I do think that the conservative justices have a point that the actual laws should be more directly accountable to the people than the Supreme Court is.
Basically, we should be able to change the laws, but it shouldn't be as simple as winning a single national election because that makes things too unstable.
That's hyperbolic and is really letting the legislature off the hook for their poor performance. Many of the things that people are upset about, say abortion rights, could have easily been addressed over the past few decades via legislation, but the congress was happy to allow it to rest on a shaky legal foundation via judicial ruling. Even now, they do nothing on the issue. You could pass a federal law saying that an abortion is to be legal in the case of incest. Who is going to oppose that? Rather than do that people want to make it easier to amend the constitution. It's ridiculous and dangerous. If the legislature tries and is denied by the courts then maybe we can talk about a constitutional amendment. But they haven't even tried yet.
It's not about winning. The original motivation for the US's structure is to impede lawmaking at the highest levels unless absolutely necessary. Making laws is not making progress.
We can’t do this without also fixing the filibuster. As it stands, almost nothing can be passed with legislation, even if you have a significant majority.
That legal philosophy is a dog whistle. The fact is congress did write these laws, and they wrote them in this way with the understanding that they would be executed by the executive branch and interpreted by the courts as they have been for generations. Telling congress to go back and rewrite the laws, and to specifically rewrite them in a way that is wildly impractical, is simply striking laws from the books that the courts have no authority to actually strike down.
Sure, that’s the loophole. What’s happening here is yet another end-run around the democratic process. People are tired of emergency powers, executive orders, and delegated authority being used to enact some of the most impactful laws of our time. We want the Schoolhouse Rock version of law-making because we at least get something of a say in it.
I'd say that does an end run around the process the Founders put in place for good reason.
It was not specified in the Constitution that the Congress shall delegate the finer details of lawmaking to the Executive Branch in the form of Administrative Law. It said that legislative power is wielded specifically by the Congress. Given that judicial review takes as an input the intent Oof the Congress, it seems daft to leave the intent to question by not having the details worked out by the legislature.
This has the practical upshot in disincentivizing unnecessary or frivolous lawmaking to boot. If instead of spending time trying to jam in notionary laws into an omnibus bill somewhere, a legislator had to come to terms with the how, not just the what, I'd wager we'd over time start to see a far morecohesive legal landscape begin to take shape.
The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation. If this was really bad then you should take it up with the legislature to change the laws.
This goes into a core misunderstanding I think a lot of Americans have, that we have three co-equal branches of government. That was not the intention, the Legislature is supposed to be the most powerful, creating laws and with the authority to impeach the other two branches, who have no way of removing legislatures. Over time the other two branches have been accumulating power that should belong to the legislature, and I see this as yet another example.
In the US, I've always found it humorous that there is no legal penalty for lawmakers continually and knowingly violating the constitution. The worst that happens is they get their bill struck down in court, then their state's legislature can vote in the next law.
Congress is rapidly becoming a failed institution. They have gradually outsourced their duties to various administrative authorities (such as the FTC) to the point that the only thing they must do to keep the US running is pass the annual budget and raise the debt ceiling.
I think any time an administrative authority or, even better, the courts do something that a legislator wants done, they breathe a sigh of relief that they don't need to spend any of their valuable political capital trying to do it themselves. The fact that what someone else does, they can also undo, never seems to play into their calculus.
One example:
Well after Democrats were established as the pro-choice party, there were periods in which both chambers and the presidency were all controlled by the Democratic party. So obviously, with pro-life activists agitating to get pro-life justices appointed, congress spent nearly zero time passing any pro-choice laws.
That's the key problem with the US now. Elected representatives are allowed to delegate law making. It breaks the line of accountability. It makes contentious issues worse.
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