even Scalia thought Thomas was a kook for inventing the "major questions doctrine." where in the Constitution can you find this? separation of powers, apparently, if you're looking through a seer stone in a hat at some golden tablets.
the majority invented the doctrine to neuter Federal agencies.
Can someone who understands law tell me if I'm correct?
SCOTUS said in a brief that a plain text reading of the HEROES act gave the administrative branch this power [1]. So, SCOTUS has invoked the Major Questions Doctrine (which I think the current court invented?), and through that, decided that this was too much power for the administrative branch to have? Is this a correct understanding of what has happened here?
The Major Questions doctrine is an invention of the Roberts court that no court before has even considered.
So yeah, they made up new rules, and yes, you're right, that the rules they made up to achieve a certain goal indicate that those goals are indeed correct.
Edit: The unsaid part of the "Major Questions" doctrine is that what it basically means is that the only decision maker in the US government is the Supreme Court.
This Supreme Court has chosen to parse Congress's bills text both strictly and loosely depending on whether it achieved their political priors. Further, they've alternatively decided to use, and disallow the usage of public statements by Congress members and/or the President for the same reason.
This is little more than a dismantling of the US govt.
> The only people that can apply it are the supreme court and the only time they'll apply it is when precedence and the letter of the law goes against their own political ideologies.
Not really. First, any inferior court can also apply the major questions doctrine -- the SCOTUS is merely the final arbiter, but presumably in many cases either there will be no case (because the Executive will preemptively go to Congress) or the Executive will accept a lower court's decision w/o having to go all the way to the SCOTUS. Second, the doctrine is pretty clear: if the impact of a regulation is politically very controversial and its impact on the economy or liberty is quite large by comparison to more mundane regulations, then it belongs to Congress.
Aside from ignoring that obviously none of the plaintiffs had legal standing here, the "major questions doctrine" is an absolute sham of a legal theory.. I can't believe this court keeps going back to it to legislate.
Like it or not, that trick's specifically enshrined and established in the Constitution. That same document Scalia claimed to defend to vigilantly. Probably there for good reasons.
I think it is not SCOTUS' job to clean up the congress created mess and Scalia was cranky because of that.
I think that Scalia strongly believed in laws are set in stone. So if there is some abmiguity or stupid language it is the Congress' fault and it is not up to SCOTUS to create laws on the fly by guestimating the congress intent.
What exactly do you think the supreme court’s job even is? You seem to have it exactly backwards. The framers spent enormous amounts of time and ink creating this system of separation of powers. Obviously it’s the job of the Supreme Court to police that. Much more so than finding new “rights” in emanations from penumbras.
So are you admitting that the decision we're talking about here is a good one, and just lamenting that it isn't applied in certain other cases? Which are the cases where you believe it should have been applied?
Or are you saying that the Major Questions doctrine is bad, and that so long as some addled brain can come up with the slightest chain of rationale to something in an otherwise-unrelated law, we should always open the floodgates? Because if legislating leads to such danger of misinterpretation, then I think we should all be praying for a whole lot more gridlock so that the Executive (whatever party he/she may be from) gets less rationale to do whatever the heck they want.
Well, now we know this Supreme Court isn't really "originalist". The concept of a national security exception exists nowhere in the Constitution. Nor does "executive privilege". These concepts were invented in the early days of World War II.[1] They do not go back to the Founding Fathers. Mostly, they go back to an arrangement between J. Edgar Hoover at the FBI and the Attorney General in 1954.
It breaks the fundamental notion of separation of powers when the Supreme Court has to start explicitly rewriting law that the executive branch doesn't like. I see Scalia's scorn mostly directed at Congress and the Executive than his fellow justices, but he also has strong convictions about the judiciary rewriting laws to suit a perceived need, since it is strictly outside their function.
Any time you read about a major court case striking down a law, or some statue, you will typically see it accompanied with a very painstaking argument about how the judiciary cannot and must not simply change or reinterpret what is perceived to be a "broken" law. They can follow the law as it is written, or they can strike it down as unconstitutional, but they can never simply say, "I don't like the effect this law would have here, so I will just ignore it."
This is like a compiler simply ignoring explicit and functional lines of code because they lead to a crash. It might sound great that the program avoids a crash, but if the program isn't running it's own code anymore, then what code is it running?
In this case, the prevailing argument was that the law as written would destroy so much of what had evolved into regulatory practice so that they couldn't bear to hold the Executive to its own rules. As you can imagine, this is a difficult precedent to set because it opens up an impossible hole in the innermost workings of the system design. I'm not a historian on this subject so I can't really point to previous examples, but my understanding is the only "proper" fix here is an act of congress, and Scotus is rightly peeved to be put in the position where the executive branch is asking them to clear up a mess like this.
Another way to think of it -- it is congress's fundamental duty to write and vote on the bills, and executive branch's duty to sign them into law. The judicial must not and cannot write their own laws, no matter how much another branch might plead with them to do so in order to get them off the hook of actually doing their job. If the judiciary can rewrite laws that don't suit the executive, it negates congress by giving the executive and judiciary branch far too much power. To those who say it was necessary in this case, just "be careful what you wish for."
Judicial review didn't exist until the Supreme Court invented it out of thin air as well! Since the foundation of the country, we have allowed the SCOTUS a degree of legislation from the bench.
Justice Thomas has discussed this in his SCOTUS opinions. It’s quite revealing and well worth reading.
SCOTUS rulings are a lot more readable than you might think. They are often quite colorful. You quickly learn to skip by the boilerplate to find the dissenting opinions, which are near the end.
Yea... But I think this comment puts them in better light than perhaps is deserved. There are arguments SCOTUS are not defenders of the constitution. Look at Clarence Thomas's dissent on Gonzalez vs Raich, where somehow SCOTUS defended the Fed's oppressing someone for growing their own medical marijuana... In a state with legal medical marijuana. There is no constitutional basis for that. Using the Commerce Clause is laughable, at best. Like Thomas said, if the government can persecute you for growing a plant for your own consumption, inside your own home, to treat your own ailments, then they can persecute you for anything. I mean, what the fuck is that ruling even, honestly?
In other words, I think you are right that they are mostly-removed from the liberal vs conservative circus... But they are not really removed from those anti-constitutional and anti-liberty politics which both those parties defend.
Nobody, least of all Scalia, has ever argued that there is no judicial discretion whatsoever. Otherwise what purpose would the supreme court serve that a simple rulebook could not?
What he argued was that, insofar as the original meaning of the text was scrutable, it should be decided based on the text itself. There are plenty of decisions where Scalia (or other justices) felt that the constitution did not address the topic at all, and thus the Court had nothing to say on the matter. There were also plenty of cases where the Framers had not contemplated the specific application of the constitution to the question at hand, such as first amendment rights as they relate to the radio / TV / internet.
As for "originalism" being propaganda, that strikes me as a cynical view. I've read much of Scalia's writings, and he believed in what he said on the topic. His failure to perfectly live up to his own ideals in every case does not make them any less worthwhile, any more than our personal moral failings are an indictment of morality itself.
> This traditional reading of the Commerce Clause was later disavowed by the Court, which after threats from Roosevelt began to read congressional power more expansively in this area, in cases such as NLRB v. Jones & Laughlin Steel Corp.[8] However, more recent cases such as United States v. Lopez[9] perhaps signal a growing inclination in the Court to once again affirm limits on its scope. In a unanimous 2011 decision, Bond v. United States, the Supreme Court cited Schechter as a precedent.[10]
the majority invented the doctrine to neuter Federal agencies.
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