A sign of where things are going
May 23, 2022 12:34 AM Subscribe
A wild new court decision would blow up much of the government's ability to operate - "The US Court of Appeals for the Fifth Circuit's decision in Jarkesy v. SEC would dismantle much of the system the federal government uses to enforce longstanding laws."
The 5th Circuit's Ambush Against the SEC Is Unprecedented and Shocking - "Our most radical court is threatening to turn the executive branch into an instrument of the president's personal power."
The Jarkesy decision claims that the system the Securities and Exchange Commission (SEC) uses to enforce federal laws protecting investors from fraud is unconstitutional for at least three different reasons; that it has been unconstitutional for years; and that somehow no one has noticed this fact until two particularly partisan judges, taking liberties with existing law, discovered these defects in the Jarkesy case.Is the SEC Unconstitutional? [ungated] - "It was the sort of case that would not have made it to the Supreme Court a decade earlier — obviously this is constitutional, everyone would have said — but times were changing... The point is that the nondelegation doctrine is alive again, and the Fifth Circuit is making a bet that the next time it goes before the Supreme Court it will win. The point is that the SEC's actual legislative actions — writing rules about stock buybacks or swaps disclosure or climate change — are now in danger. It used to be accepted as a routine matter that the SEC could make rules under a very broad grant of power from Congress to regulate securities markets in the public interest. I am not sure that is true anymore."
The holding of Jarkesy is broad. It could destroy the federal government’s power to enforce key laws preventing companies from deceiving investors, and it likely goes much further than that. Among other things, the decision could blow up the process that the Social Security Administration uses to determine who is entitled to benefits — although someone would have to file a new lawsuit before that could happen.
The 5th Circuit's Ambush Against the SEC Is Unprecedented and Shocking - "Our most radical court is threatening to turn the executive branch into an instrument of the president's personal power."
As ideological as the Supreme Court may be, this is tampering with securities markets. This is the third rail, more so than even Social Security or Medicare: the last thing that Wall Street wants is unpredictability regarding investment reports: that jeopardizes the entire market if investor confidence takes a nosedive.
But who knows? We're playing Calvinball now. But I like to believe that the financial powers that be are going to be breathing very hard on ACB and the rest to make sure that no one breaks the game of stock markets. Because the alternative is the stuff of Robespierres and Chekists....
posted by LeRoienJaune at 1:52 AM on May 23, 2022 [15 favorites]
But who knows? We're playing Calvinball now. But I like to believe that the financial powers that be are going to be breathing very hard on ACB and the rest to make sure that no one breaks the game of stock markets. Because the alternative is the stuff of Robespierres and Chekists....
posted by LeRoienJaune at 1:52 AM on May 23, 2022 [15 favorites]
This was what the funders of the modern GOP have been paying for all along. Abortion was the sizzle; destruction of the administrative state is the steak.
posted by Etrigan at 5:22 AM on May 23, 2022 [55 favorites]
posted by Etrigan at 5:22 AM on May 23, 2022 [55 favorites]
from the "Is the SEC Unconstitutional?" article:
Also the constitution does say “all legislative powers” are vested in Congress. If you take that literally, you might think that it’s unconstitutional for the SEC to make any rules at all.
I would love to see the disintegration of the executive order.
posted by NoThisIsPatrick at 5:39 AM on May 23, 2022 [2 favorites]
Also the constitution does say “all legislative powers” are vested in Congress. If you take that literally, you might think that it’s unconstitutional for the SEC to make any rules at all.
I would love to see the disintegration of the executive order.
posted by NoThisIsPatrick at 5:39 AM on May 23, 2022 [2 favorites]
Nor is there any politically plausible way to add sufficient seats to the Article III courts to accommodate such a rush of cases. To do so, Congress would have to pass legislation — legislation that could be filibustered in the Senate — to create hundreds of new judgeships. And then President Joe Biden would need to nominate, and the Senate would need to confirm, a small army of new judges to these seats.
That would effectively dilute the conservative-dominated federal judiciary with a wave of new Biden appointees. The likelihood that Senate Republicans would allow that to happen — even if the White House had the capacity to identify qualified candidates for these new judgeships in a timely manner — is slim to none.
Elrod and Oldham, in other words, have done the judicial equivalent of tossing a Molotov cocktail into the federal government. If federal law permitted such a thing, then maybe their decision would be justifiable. But their decision is not just an invitation to chaos, it is at odds with decades of established law.
Gonna just hope all this is right, but man, "these judges have too much protection from being fired by the president, they can only be removed by commissioners the president appoints" is some next-level bullshit.
posted by subdee at 5:58 AM on May 23, 2022 [5 favorites]
That would effectively dilute the conservative-dominated federal judiciary with a wave of new Biden appointees. The likelihood that Senate Republicans would allow that to happen — even if the White House had the capacity to identify qualified candidates for these new judgeships in a timely manner — is slim to none.
Elrod and Oldham, in other words, have done the judicial equivalent of tossing a Molotov cocktail into the federal government. If federal law permitted such a thing, then maybe their decision would be justifiable. But their decision is not just an invitation to chaos, it is at odds with decades of established law.
Gonna just hope all this is right, but man, "these judges have too much protection from being fired by the president, they can only be removed by commissioners the president appoints" is some next-level bullshit.
posted by subdee at 5:58 AM on May 23, 2022 [5 favorites]
Like the essence of government is to delegate and the essence of our government is to divide civic duties between 3 branches so that no one person can become a king....
posted by subdee at 6:00 AM on May 23, 2022 [1 favorite]
posted by subdee at 6:00 AM on May 23, 2022 [1 favorite]
When I hear "Elrod" I think of the last ruler of a dying race, and this seems like the kind of decision he would make.
posted by Slothrup at 6:24 AM on May 23, 2022 [3 favorites]
posted by Slothrup at 6:24 AM on May 23, 2022 [3 favorites]
This really seems to torture the definition of "legislation."
Like, I understand that creating an agency whole-cloth should come under the purview of Congress. However, once that agency is created (and funded!), it should be able to operate without needing continual Congressional approval.
This is some wild, sovereign citizen bullshit, and I can't imagine if passing because of the unseen consequences. They have to know that if government collapses, a new government under a new constitution won't have minority rule enshrined by law, right?
posted by explosion at 6:44 AM on May 23, 2022 [4 favorites]
Like, I understand that creating an agency whole-cloth should come under the purview of Congress. However, once that agency is created (and funded!), it should be able to operate without needing continual Congressional approval.
This is some wild, sovereign citizen bullshit, and I can't imagine if passing because of the unseen consequences. They have to know that if government collapses, a new government under a new constitution won't have minority rule enshrined by law, right?
posted by explosion at 6:44 AM on May 23, 2022 [4 favorites]
The Supreme Court is poised to weigh in on the topic soon ; this willingness to hobble the government has convinced me that conservatives are secretly anarchists at heart.
posted by TedW at 7:01 AM on May 23, 2022 [6 favorites]
posted by TedW at 7:01 AM on May 23, 2022 [6 favorites]
> conservatives are secretly anarchists at heart.
They are not against government. They are against someone else doing the governing. These institutions allow for that to happen, and that is why they must be destroyed. Corporations are more desirable as a mechanism of governance because they are allowed to be completely tyrannical.
posted by I-Write-Essays at 7:07 AM on May 23, 2022 [37 favorites]
They are not against government. They are against someone else doing the governing. These institutions allow for that to happen, and that is why they must be destroyed. Corporations are more desirable as a mechanism of governance because they are allowed to be completely tyrannical.
posted by I-Write-Essays at 7:07 AM on May 23, 2022 [37 favorites]
The thing about the right: They don't care about making a society that functions for most people; they care about making a society where "God" can reward the "good" people by making them rich and powerful and where they can prevent "demonic" things like homosexuality and gender equality. If we're all living in absolute misery, malnourished, unhoused and dying of treatable diseases, that's completely fine because the "good" people will be rich and comfortable or at least protected by their fascist patrons.
Making society worse so that they can rule the ash-heap is their agenda. You or I would say, "evil is when people need medical care and can't get it because it's too expensive, or when they have to work in horrible conditions while their bosses make millions"; the right would say, "evil is when a gay couple can adopt a kid rather than being run out of town on a rail by their righteous neighbors".
In a sense, with the way the Democrats and their wealthy buddies have eaten the seed corn these past forty years, it's hard to feel like it matters on a moral level; being driven into poverty and homelessness by rich people who will kneel for a photo opportunity wearing kente cloth isn't that different from being driven into poverty and homelessness by an outright fascist. But I think that the underlying worldview differences will in fact govern just how bad things are going to get - will people live in suffering because of neglect or will they actually be crushed and destroyed?
posted by Frowner at 7:34 AM on May 23, 2022 [46 favorites]
Making society worse so that they can rule the ash-heap is their agenda. You or I would say, "evil is when people need medical care and can't get it because it's too expensive, or when they have to work in horrible conditions while their bosses make millions"; the right would say, "evil is when a gay couple can adopt a kid rather than being run out of town on a rail by their righteous neighbors".
In a sense, with the way the Democrats and their wealthy buddies have eaten the seed corn these past forty years, it's hard to feel like it matters on a moral level; being driven into poverty and homelessness by rich people who will kneel for a photo opportunity wearing kente cloth isn't that different from being driven into poverty and homelessness by an outright fascist. But I think that the underlying worldview differences will in fact govern just how bad things are going to get - will people live in suffering because of neglect or will they actually be crushed and destroyed?
posted by Frowner at 7:34 AM on May 23, 2022 [46 favorites]
A bit of both. The undesirables who knuckle under will die slowly because of neglect, while the ones who rebel will be mercilessly crushed as an example.
posted by seanmpuckett at 8:15 AM on May 23, 2022 [1 favorite]
posted by seanmpuckett at 8:15 AM on May 23, 2022 [1 favorite]
There has long been a nutcase fringe view in American conservatism, holding that most of what the Federal Government does is unconstitutional. This is just more evidence that what used to be the nutcase fringe is now mainstream.
I do not think the 5CA opinion is cynical. Delusional, yes. Deeply stupid, yes. Ignorant of how the world works and bent on making the world fit a particular cramped fucked-up vision, yes. But sincerely meant to make the world a better place.
posted by Aardvark Cheeselog at 8:20 AM on May 23, 2022 [4 favorites]
I do not think the 5CA opinion is cynical. Delusional, yes. Deeply stupid, yes. Ignorant of how the world works and bent on making the world fit a particular cramped fucked-up vision, yes. But sincerely meant to make the world a better place.
posted by Aardvark Cheeselog at 8:20 AM on May 23, 2022 [4 favorites]
> conservatives are secretly anarchists at heart.
Anarchists are Conservative at heart, unfortunately.
posted by parmanparman at 8:51 AM on May 23, 2022 [8 favorites]
Anarchists are Conservative at heart, unfortunately.
posted by parmanparman at 8:51 AM on May 23, 2022 [8 favorites]
The Supreme Court is poised to weigh in on [the nondelegation doctrine] soon ; this willingness to hobble the government has convinced me that conservatives are secretly anarchists at heart.
The theory is that we would have better, more democratically-responsive governance if more direct responsibility was imposed on the elected legislature. The problem is that the conservative judges making these decisions know full well that the complexity of the modern economy*, gerrymandering, voter suppression, the filibuster, the fundamentally undemocratic nature of the Senate, and the giant time-suck Red Queen's race that is election fundraising combine to make it impossible for Congress to do the work of carefully considering and passing the hundreds of additional bills that would be required every year if Congress took on the rulemaking work now done by administrative agencies.
The facile conservative answer is "well then pass a Constitutional amendment", but again the conservative judges know that amendments are functionally impossible. There have only been two in the past 51 years, and the last one was a very minor change and is routinely ignored in practice.
* Whole giant industries such as electricity, drinking water (in the modern utility sense), fossil fuels, automobiles, air travel, radio, television, the internet, telephony, effective medicine, factories, etc were barely even science fiction at the time the Constitution was written. In 1790, over 90% of Americans were farmers [pdf]. It was reasonable to expect Congress to do essentially all of the regulatory work in such a slow-moving, homogenous economy. It is absolutely absurd to do so now.
posted by jedicus at 8:57 AM on May 23, 2022 [10 favorites]
The theory is that we would have better, more democratically-responsive governance if more direct responsibility was imposed on the elected legislature. The problem is that the conservative judges making these decisions know full well that the complexity of the modern economy*, gerrymandering, voter suppression, the filibuster, the fundamentally undemocratic nature of the Senate, and the giant time-suck Red Queen's race that is election fundraising combine to make it impossible for Congress to do the work of carefully considering and passing the hundreds of additional bills that would be required every year if Congress took on the rulemaking work now done by administrative agencies.
The facile conservative answer is "well then pass a Constitutional amendment", but again the conservative judges know that amendments are functionally impossible. There have only been two in the past 51 years, and the last one was a very minor change and is routinely ignored in practice.
* Whole giant industries such as electricity, drinking water (in the modern utility sense), fossil fuels, automobiles, air travel, radio, television, the internet, telephony, effective medicine, factories, etc were barely even science fiction at the time the Constitution was written. In 1790, over 90% of Americans were farmers [pdf]. It was reasonable to expect Congress to do essentially all of the regulatory work in such a slow-moving, homogenous economy. It is absolutely absurd to do so now.
posted by jedicus at 8:57 AM on May 23, 2022 [10 favorites]
Mod note: One comment deleted for violating the Community Guidelines. Specifically: "Be considerate and respectful"
posted by loup (staff) at 9:19 AM on May 23, 2022 [3 favorites]
posted by loup (staff) at 9:19 AM on May 23, 2022 [3 favorites]
Elrod of Melvinbone is the satirical version, in Cerberus the Aardvark , of Elric of Melnibone . He talks like Foghorn Leghorn.
posted by freecellwizard at 9:21 AM on May 23, 2022 [3 favorites]
posted by freecellwizard at 9:21 AM on May 23, 2022 [3 favorites]
Gonna just hope all this is right, but man, "these judges have too much protection from being fired by the president, they can only be removed by commissioners the president appoints" is some next-level bullshit.
That stood out to me too. They want all civil servant job protections declared unconstitutional so that literally everything can be swept away next time Orange Hitler is elected. They're thinking, "our guy was limited by the bureaucracy so we will destroy it." The plan is to change things fast as soon as they get the levers of power. No mistakes this time.
posted by Horkus at 11:50 AM on May 23, 2022 [12 favorites]
That stood out to me too. They want all civil servant job protections declared unconstitutional so that literally everything can be swept away next time Orange Hitler is elected. They're thinking, "our guy was limited by the bureaucracy so we will destroy it." The plan is to change things fast as soon as they get the levers of power. No mistakes this time.
posted by Horkus at 11:50 AM on May 23, 2022 [12 favorites]
There has long been a nutcase fringe view in American conservatism, holding that most of what the Federal Government does is unconstitutional. ... But sincerely meant to make the world a better place.
This is untrue of the modern American Right. They do. not. care. about the actual effects of their actions and quote-principles-unquote. In fact, they actively dislike any introduction of those effects into the conversation. Trying to do so will cause them to dismiss the way you determined those effects; argue that the effects didn't really happen; insist that those effects are temporary, limited, or otherwise inapplicable; and just generally end the discussion. Once you see it, you will not be able to stop seeing it.
They don't want to make the world a better place. They want to make their world better than someone else's, in any way they possibly can. They will let three of their grandparents die as long as four of your grandparents die.
posted by Etrigan at 12:03 PM on May 23, 2022 [24 favorites]
This is untrue of the modern American Right. They do. not. care. about the actual effects of their actions and quote-principles-unquote. In fact, they actively dislike any introduction of those effects into the conversation. Trying to do so will cause them to dismiss the way you determined those effects; argue that the effects didn't really happen; insist that those effects are temporary, limited, or otherwise inapplicable; and just generally end the discussion. Once you see it, you will not be able to stop seeing it.
They don't want to make the world a better place. They want to make their world better than someone else's, in any way they possibly can. They will let three of their grandparents die as long as four of your grandparents die.
posted by Etrigan at 12:03 PM on May 23, 2022 [24 favorites]
@Etrigan:
They don't want to make the world a better place. They want to make their world better than someone else's, in any way they possibly can. They will let three of their grandparents die as long as four of your grandparents die.
This is correct, for a subset of "them."
"They" are not a monolith, in spite of their party discipline when it comes to legislative voting and messaging. "They" have a faction that does not care about anything except power, and that would rather rule in Hell than serve in Heaven. "They" also have a hard core of True Believers who have been chasing some dreams for going on 80 years now, and declaring the regulatory state illegal is one of those.
posted by Aardvark Cheeselog at 1:00 PM on May 23, 2022 [3 favorites]
They don't want to make the world a better place. They want to make their world better than someone else's, in any way they possibly can. They will let three of their grandparents die as long as four of your grandparents die.
This is correct, for a subset of "them."
"They" are not a monolith, in spite of their party discipline when it comes to legislative voting and messaging. "They" have a faction that does not care about anything except power, and that would rather rule in Hell than serve in Heaven. "They" also have a hard core of True Believers who have been chasing some dreams for going on 80 years now, and declaring the regulatory state illegal is one of those.
posted by Aardvark Cheeselog at 1:00 PM on May 23, 2022 [3 favorites]
"They" are not a monolith, in spite of their party discipline when it comes to legislative voting and messaging.
Nope. Sorry. We’re past the point where any remaining Republican can say they’ve soberly studied the facts and still believe that trickle-down economics, reversing a century of civil rights advances, gutting the administrative state, forcing women to give birth, and every other thing they claim follows from their blinkered principles will make the world better.
I speak from experience. If you try to have a conversation with a 21st century American conservative, and you bring up actual effects of policy, they will not only ignore them, they will claim victory because you brought them up. Or else they will retreat into “Well, I don’t agree with that” or “I don’t see why you have to make everything so political“ or some other nonsense. Pointing this out isn’t making them into a monolith, and saying that it is is the exact same thing — ignoring the actual effects of what they do in favor of some high-handed theoretical principle of diversity that they do not subscribe to either except as a rhetorical device.
posted by Etrigan at 1:15 PM on May 23, 2022 [26 favorites]
Nope. Sorry. We’re past the point where any remaining Republican can say they’ve soberly studied the facts and still believe that trickle-down economics, reversing a century of civil rights advances, gutting the administrative state, forcing women to give birth, and every other thing they claim follows from their blinkered principles will make the world better.
I speak from experience. If you try to have a conversation with a 21st century American conservative, and you bring up actual effects of policy, they will not only ignore them, they will claim victory because you brought them up. Or else they will retreat into “Well, I don’t agree with that” or “I don’t see why you have to make everything so political“ or some other nonsense. Pointing this out isn’t making them into a monolith, and saying that it is is the exact same thing — ignoring the actual effects of what they do in favor of some high-handed theoretical principle of diversity that they do not subscribe to either except as a rhetorical device.
posted by Etrigan at 1:15 PM on May 23, 2022 [26 favorites]
* Whole giant industries such as electricity, drinking water (in the modern utility sense), fossil fuels, automobiles, air travel, radio, television, the internet, telephony, effective medicine, factories, etc were barely even science fiction at the time the Constitution was written.
Nevertheless, y'all can read the Act Relating to Quarantine, passed during George Washington's first term.
It gave the President a blanket authorization to direct any and all officers of the Executive Branch to do anything whatsoever to bring smallpox and yellow fever under control in any location where it appeared. It was a blank check. Hell, it was an authorization for a dictatorship in the classic Roman sense of the word.
The Founders knew full well that there will be situations that develop too quickly or intricately to be handled in deliberations in Congress, because that was more true for them than it is for us, when information had to travel by rowboat to the Capital and then back.
So this nondelegation doctrine was established by the founders to be a crock of shit in the very first presidential term. They not only delegated, they let the president (and his agents far from the capital) decide what it was that they delegated.
posted by ocschwar at 1:29 PM on May 23, 2022 [19 favorites]
Correction: Washington's second term. The Act Relative to Quarantine.
posted by ocschwar at 1:32 PM on May 23, 2022 [9 favorites]
posted by ocschwar at 1:32 PM on May 23, 2022 [9 favorites]
The Supreme Court is poised to weigh in on the topic soon ; this willingness to hobble the government has convinced me that conservatives are secretly anarchists at heart.
Anarchism is historically the libertarian branch of the socialist movement, arguing against the authoritarian branch (generally Marxist-Leninists and their ideological descendants) that the state is an inherently conservative force and cannot be operated in a way that will result in socialism. Anarchists stand against all instances of people having power over one another, all hierarchies, all oppression and abuse, as unjustifiable and damaging to human health, wealth, and decency.
Conservatives stand for the hierarchies that have always existed, for every axis of oppression, for every "freedom" that is ultimately just the "freedom" of those with power to wield it against those who don't. The exercise of power over those who cannot refuse it is the core value of conservatism. Their historical roots are in the defense of the divine right of kings. They are the opposite of anarchists.
Conservatives are not trying to "hobble the government" at all, let alone because they believe that there should be less power, less hierarchy, and less abuse; they are trying to tear down the specific parts which they understand as constraints on those who have power, be it in the form of wealth, of structural authority, or simply by possession of traits (whiteness, manness, wealth) which put them on the winning side of various oppressions to abuse, exploit, and dominate those who do not.
Yes, "anarcho-capitalists" exist, but if you think they have any connection or claim to anarchism as it has existed for nearly 200 years then I'd like to tell you about the Democratic People's Republic of Korea.
posted by Pope Guilty at 1:41 PM on May 23, 2022 [24 favorites]
Anarchism is historically the libertarian branch of the socialist movement, arguing against the authoritarian branch (generally Marxist-Leninists and their ideological descendants) that the state is an inherently conservative force and cannot be operated in a way that will result in socialism. Anarchists stand against all instances of people having power over one another, all hierarchies, all oppression and abuse, as unjustifiable and damaging to human health, wealth, and decency.
Conservatives stand for the hierarchies that have always existed, for every axis of oppression, for every "freedom" that is ultimately just the "freedom" of those with power to wield it against those who don't. The exercise of power over those who cannot refuse it is the core value of conservatism. Their historical roots are in the defense of the divine right of kings. They are the opposite of anarchists.
Conservatives are not trying to "hobble the government" at all, let alone because they believe that there should be less power, less hierarchy, and less abuse; they are trying to tear down the specific parts which they understand as constraints on those who have power, be it in the form of wealth, of structural authority, or simply by possession of traits (whiteness, manness, wealth) which put them on the winning side of various oppressions to abuse, exploit, and dominate those who do not.
Yes, "anarcho-capitalists" exist, but if you think they have any connection or claim to anarchism as it has existed for nearly 200 years then I'd like to tell you about the Democratic People's Republic of Korea.
posted by Pope Guilty at 1:41 PM on May 23, 2022 [24 favorites]
Going to cut and paste from a letter I sent to my congresslady about this exact issue during the ACB confirmation process:
Dear sir/ma'am:
I am writing to you about an urgent problem with the nomination of Amy C. Barret to the Supreme Court, and her adherence to a new theory of Constitutional interpretation that is making the rounds in the right wing, the non-delegation theory, which holds that Congress cannot delegate the writing of regulations to an agency in the executive branch. Let me explain to you as an engineer, why this theory deserves to laughed out of our legal system and never taken seriously by an adult, ever again.
By now you've watched the series Breaking Bad, or at least you know that it begins with the theft of glassware from a high school chemistry lab. One thing you should know about those flasks and tubes is that they are made of borosilicate glass, also known as Pyrex, and that this type of glass only became commonly available in the 1880's, after the death of James Monroe, the last of the Founding Fathers.
Before pyrex, scientists had to use soda glass for lab glassware, which is more fragile. They could not subject their gear to the heat, pressure, and vibrations that pyrex can handle. Laboratory glassware began improving in the 1840's, but it was borosilicate glass, four decades later, that enabled the emergence of chemistry as we know it today. With it, chemists were able to synthesize
molecules that had never before existed. And therein lies the rub. After synthesizing so many new substances, we've learned the hard way that they can cause harm to people, to property, and to nature, and that their use, handling, and disposal must be regulated for the safety of the public.
These novel compounds now number in the hundreds of thousands. The International Union of Pure and Applied Chemistry maintains two reference standards just for naming them, and these add up to 1900 pages. Novel compounds are synthesized every day, and more evidence about their effects, good and ill, is published every day. Congress has delegated the task of regulating their production, use and disposal to the EPA, FDA, OSHA and other agencies, and rightly so. The idea that Congress could handle the task with its procedures and norms is one that fails the giggle test.
Yet that is what the theory of non-delegation dictates. It's appalling that any educated adult would entertain such a notion, let alone Supreme Court justices and nominees. And the only justification
offered for this nonsense is that our Constitution was written in the 1780s, by people who could not have known how chemistry would develop decades later. Unfortunately, the chasm between our educated population and our technically educated population has grown wide enough to allow such a crackpot theory to be put forward as a resolution for what would otherwise be a sensibly handled latent ambiguity in the Constitution.
Under non-delegation, Congress would be saddled with tasks currently before the EPA, FDA, OSHA, USDA, et cetera. Effectively speaking, it would allow industry a free hand to expose our citizens to every substance they can cook up. The doctrine's ham-stringing of the Federal Aviation Authority would have effects I shudder to contemplate, and its effects on the FCC's regulation of wireless communication would also put lives at risk. This doctrine is at odds with another doctrine present in Constitutional case law: "the Constitution is not a suicide pact."
posted by ocschwar at 1:50 PM on May 23, 2022 [32 favorites]
Dear sir/ma'am:
I am writing to you about an urgent problem with the nomination of Amy C. Barret to the Supreme Court, and her adherence to a new theory of Constitutional interpretation that is making the rounds in the right wing, the non-delegation theory, which holds that Congress cannot delegate the writing of regulations to an agency in the executive branch. Let me explain to you as an engineer, why this theory deserves to laughed out of our legal system and never taken seriously by an adult, ever again.
By now you've watched the series Breaking Bad, or at least you know that it begins with the theft of glassware from a high school chemistry lab. One thing you should know about those flasks and tubes is that they are made of borosilicate glass, also known as Pyrex, and that this type of glass only became commonly available in the 1880's, after the death of James Monroe, the last of the Founding Fathers.
Before pyrex, scientists had to use soda glass for lab glassware, which is more fragile. They could not subject their gear to the heat, pressure, and vibrations that pyrex can handle. Laboratory glassware began improving in the 1840's, but it was borosilicate glass, four decades later, that enabled the emergence of chemistry as we know it today. With it, chemists were able to synthesize
molecules that had never before existed. And therein lies the rub. After synthesizing so many new substances, we've learned the hard way that they can cause harm to people, to property, and to nature, and that their use, handling, and disposal must be regulated for the safety of the public.
These novel compounds now number in the hundreds of thousands. The International Union of Pure and Applied Chemistry maintains two reference standards just for naming them, and these add up to 1900 pages. Novel compounds are synthesized every day, and more evidence about their effects, good and ill, is published every day. Congress has delegated the task of regulating their production, use and disposal to the EPA, FDA, OSHA and other agencies, and rightly so. The idea that Congress could handle the task with its procedures and norms is one that fails the giggle test.
Yet that is what the theory of non-delegation dictates. It's appalling that any educated adult would entertain such a notion, let alone Supreme Court justices and nominees. And the only justification
offered for this nonsense is that our Constitution was written in the 1780s, by people who could not have known how chemistry would develop decades later. Unfortunately, the chasm between our educated population and our technically educated population has grown wide enough to allow such a crackpot theory to be put forward as a resolution for what would otherwise be a sensibly handled latent ambiguity in the Constitution.
Under non-delegation, Congress would be saddled with tasks currently before the EPA, FDA, OSHA, USDA, et cetera. Effectively speaking, it would allow industry a free hand to expose our citizens to every substance they can cook up. The doctrine's ham-stringing of the Federal Aviation Authority would have effects I shudder to contemplate, and its effects on the FCC's regulation of wireless communication would also put lives at risk. This doctrine is at odds with another doctrine present in Constitutional case law: "the Constitution is not a suicide pact."
posted by ocschwar at 1:50 PM on May 23, 2022 [32 favorites]
The decision, at least on my reading, does not call into question the SEC's ability to write rules. It was far more narrowly focused on the SEC's power to determine if someone went to an administrative tribunal or a court, and held, in that by giving the SEC a free choice of whether to take someone to court or to an administrative tribunal, and providing no principles by which to make the choice, congress unconstitutionally delegated its legislative authority.
The decision explicitly states that where there is an intelligible principle, the grant of authority is constitutional:
The more radical part of the decision is this:
I suppose more broadly the argument is "You can have a powerful administrative state that exercises broad powers with a great deal of discretion, or you can have an independent civil service that only exists to carry out the laws as written, you cannot have both without violating the constitution." It's not to my mind, an inherently unreasonable position to take.
posted by Grimgrin at 2:51 PM on May 23, 2022 [3 favorites]
The decision explicitly states that where there is an intelligible principle, the grant of authority is constitutional:
According to the Supreme Court’s more recent formulations of that longstanding rule,13 Congress may grant regulatory power to another entity only if it provides an “intelligible principle” by which the recipient of the power can exercise it. Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The two questions we must address, then, are (1) whether Congress has delegated power to the agency that would be legislative power but-for an intelligible principle to guide its use and, if it has, (2) whether it has provided an intelligible principle such that the agency exercises only executive power.It did not consider the SEC's ability to write rules in toto, nor did it find those powers unconstitutional.
The more radical part of the decision is this:
MSPB members “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1202(d). So, for an SEC ALJ to be removed, the MSPB must find good cause and the Commission must choose to act on that finding. And members of both the MSPB and the Commission have for-cause protection from removal by the President. Simply put, if the President wanted an SEC ALJ to be removed, at least two layers of for-cause protection stand in the President’s way.This principle, applied broadly, would make the civil service far more directly accountable to the president by removing job protections. There is a cogent argument that delegating broad powers to the executive and then making the officials you have invested with that power difficult to remove represents an end-run around any sort of accountability or oversight.
Thus, SEC ALJs are sufficiently insulated from removal that the President cannot take care that the laws are faithfully executed. The statutory removal restrictions are unconstitutional.
I suppose more broadly the argument is "You can have a powerful administrative state that exercises broad powers with a great deal of discretion, or you can have an independent civil service that only exists to carry out the laws as written, you cannot have both without violating the constitution." It's not to my mind, an inherently unreasonable position to take.
posted by Grimgrin at 2:51 PM on May 23, 2022 [3 favorites]
The decision, at least on my reading, does not call into question the SEC's ability to write rules.
Comments (such as mine) about conservative attacks on agency rulemaking authority more broadly are referring to Jarkesy's broader role in the ongoing conservative project to expand the nondelegation doctrine (see the Bloomberg opinion piece linked in the FPP), which the conservative majority on the Supreme Court has at least a couple of opportunities to do this term: West Virginia v. EPA and AHA v. Becerra.
This principle, applied broadly, would make the civil service far more directly accountable to the president by removing job protections.
The principle, applied broadly, would result in ALJs turning over every time the presidency changed party.
There is a cogent argument that delegating broad powers to the executive and then making the officials you have invested with that power difficult to remove represents an end-run around any sort of accountability or oversight.
Accountability to whom? It would remain only with the executive, and since it would be very unusual for an ALJ to be fired by the same president under which they were hired, the result would likely be that ALJs effectively become political appointees but without Senate confirmation. That's just a dressed up version of the spoils system.
posted by jedicus at 3:42 PM on May 23, 2022 [7 favorites]
Comments (such as mine) about conservative attacks on agency rulemaking authority more broadly are referring to Jarkesy's broader role in the ongoing conservative project to expand the nondelegation doctrine (see the Bloomberg opinion piece linked in the FPP), which the conservative majority on the Supreme Court has at least a couple of opportunities to do this term: West Virginia v. EPA and AHA v. Becerra.
This principle, applied broadly, would make the civil service far more directly accountable to the president by removing job protections.
The principle, applied broadly, would result in ALJs turning over every time the presidency changed party.
There is a cogent argument that delegating broad powers to the executive and then making the officials you have invested with that power difficult to remove represents an end-run around any sort of accountability or oversight.
Accountability to whom? It would remain only with the executive, and since it would be very unusual for an ALJ to be fired by the same president under which they were hired, the result would likely be that ALJs effectively become political appointees but without Senate confirmation. That's just a dressed up version of the spoils system.
posted by jedicus at 3:42 PM on May 23, 2022 [7 favorites]
This line of thought/ decisional approach will wreak havoc on the Social Security Administration, which, by an enormous margin, hires more ALJs than any other agency and conducts hundreds of thousands of hearings a year to determine eligibility for disability benefits. That administrative judiciary is now independent but the logic of this approach leads to the abolishment of any judicial independence and the likelihood that these 1400 or so ALJs will be replaced with the idiot sons of Trump's donors as political spoils.
posted by pasici at 3:43 PM on May 23, 2022
posted by pasici at 3:43 PM on May 23, 2022
So, separate from what is or isn't conservatism, what's the educated prediction on how this plays out in the SC. I mean, the upcoming Roe doesn't explode the functioning of the system - corrupt and evil thought it may be. My understanding was the in general the work to keep the system running and to that end - and that of "justice" - manufacture flexibility to manage internal stresses such as related in the IUPAC example above.
posted by DeepSeaHaggis at 5:07 PM on May 23, 2022
posted by DeepSeaHaggis at 5:07 PM on May 23, 2022
This principle, applied broadly, would make the civil service far more directly accountable to the president by removing job protections. There is a cogent argument that delegating broad powers to the executive and then making the officials you have invested with that power difficult to remove represents an end-run around any sort of accountability or oversight.
Okay, so this is just an attack on the Civil Service Act passed after the murder of President Garfield.
That was what, 1884? Fascinating how shielding officials of the Executive from the president's whim was deemed perfectly fine and dandy for 140 years, and is now suddenly unconstitutional.
I mean, yes, there's a cogent argument that shielding these officials is a bad idea and should be undone by Congress. But unconstitutional?
The credibility of our judicial branch is in danger of being destroyed by all the sheer crackpottery.
posted by ocschwar at 9:56 PM on May 23, 2022 [2 favorites]
Okay, so this is just an attack on the Civil Service Act passed after the murder of President Garfield.
That was what, 1884? Fascinating how shielding officials of the Executive from the president's whim was deemed perfectly fine and dandy for 140 years, and is now suddenly unconstitutional.
I mean, yes, there's a cogent argument that shielding these officials is a bad idea and should be undone by Congress. But unconstitutional?
The credibility of our judicial branch is in danger of being destroyed by all the sheer crackpottery.
posted by ocschwar at 9:56 PM on May 23, 2022 [2 favorites]
dismantling the bureaucracy is the mirror image of the republicans' legislative strategy. on the legislative side, they hold way more power than their numbers should give them due to the senate and EC, concentrated in conservative rural enclaves. they refuse to pass laws that the majority wants. and then the judiciary says, well, these technocratic bureaucrats can't enforce the laws on the books until new laws are passed, which of course cannot pass. and before you know it, you roll back the legal regime 30, 40, 50 years. clever!
i'm not an alarmist; most people aren't eager to break out the muskets and upend their lives to go start a civil conflict. more likely is the kansas scenario: deprive government of resources til even conservative people who were born in an era when folks expected it to do things get fed up and ask to be let back into the 21st century.
the corollary of national government devolving into nothingness is that some states will choose to do more. maybe someday big blue states like california and new york will have competent, serious, problem-solving governments that can serve as a model for the nation (after government is dismantled everywhere else) instead of... what they currently have. that's probably the best hope, though it's not looking great at the moment.
posted by wibari at 10:18 PM on May 23, 2022
i'm not an alarmist; most people aren't eager to break out the muskets and upend their lives to go start a civil conflict. more likely is the kansas scenario: deprive government of resources til even conservative people who were born in an era when folks expected it to do things get fed up and ask to be let back into the 21st century.
the corollary of national government devolving into nothingness is that some states will choose to do more. maybe someday big blue states like california and new york will have competent, serious, problem-solving governments that can serve as a model for the nation (after government is dismantled everywhere else) instead of... what they currently have. that's probably the best hope, though it's not looking great at the moment.
posted by wibari at 10:18 PM on May 23, 2022
A little surprised that the blue is so far silent on the issue of trial by jury, which by word count at least gets more attention in the decision than does delegation. Not a lawyer, me, but there's always something a little star chambery about the administrative bodies both making law and laying down the law. No love for twelve good men and true, a panel of my peers? Thoughts? I'm open to persuasion.
posted by BWA at 4:50 AM on May 24, 2022 [1 favorite]
posted by BWA at 4:50 AM on May 24, 2022 [1 favorite]
Well, this is about controversies that usually involve corporations. How often does a corporate legal team WANT their work to be put into the hands of a jury?
posted by ocschwar at 6:59 AM on May 24, 2022
posted by ocschwar at 6:59 AM on May 24, 2022
A little surprised that the blue is so far silent on the issue of trial by jury, which by word count at least gets more attention in the decision than does delegation. Not a lawyer, me, but there's always something a little star chambery about the administrative bodies both making law and laying down the law. No love for twelve good men and true, a panel of my peers? Thoughts? I'm open to persuasion.
I think the dissent addresses this issue pretty well. When the government is acting in a sovereign capacity in a non-criminal context to enforce public rights--basically, acting in the public interest, like enforcing environmental regulations or consumer protection regulations or laws protecting the safety and soundness of the banking system--then there is no Seventh Amendment right to a jury. The precedent that the Jarkesy majority disregarded is crystal-clear on this. Requiring jury trials every time the government tries to enforce public rights is mind-bogglingly impractical and would effectively mean that the government tries to enforce public rights even less frequently than it does now...which isn't as frequent as it should be in any event.
Plus, juries suuuuuuuck as fact-finding bodies.
posted by Gadarene at 7:44 AM on May 24, 2022 [2 favorites]
I think the dissent addresses this issue pretty well. When the government is acting in a sovereign capacity in a non-criminal context to enforce public rights--basically, acting in the public interest, like enforcing environmental regulations or consumer protection regulations or laws protecting the safety and soundness of the banking system--then there is no Seventh Amendment right to a jury. The precedent that the Jarkesy majority disregarded is crystal-clear on this. Requiring jury trials every time the government tries to enforce public rights is mind-bogglingly impractical and would effectively mean that the government tries to enforce public rights even less frequently than it does now...which isn't as frequent as it should be in any event.
Plus, juries suuuuuuuck as fact-finding bodies.
posted by Gadarene at 7:44 AM on May 24, 2022 [2 favorites]
The Seventh Amendment question seems to come down to whether the SEC's securities fraud action is covered by the public rights doctrine or not -- if the SEC is enforcing a "public right", then administrative proceedings are OK, otherwise a jury trial is required. The dissent definitely seems to have the stronger precedential argument here.
I'll confess I'm not entirely comfortable with where the dissent ends up, though, correct or not . As I read it, the dissent would allow Congress to take all civil disputes under federal law away from the courts if it wants to, which doesn't seem right. But the majority is too far gone in originalism to make the sort of policy arguments that would shed some light on where the line should be drawn. (I mean, the idea that the line should be based on on what sort of actions were tried at common law in 1789 is too ridiculous for anyone to entertain without extensive Federalist Society indoctrination.)
Discussion of whether juries in fact "suuuuuuuck" could perhaps go in the sortition thread, but I would be interested in any actual evidence that they are inferior to judicial fact-finding -- which tends to depend heavily on what sort of mood the judge is in today, as well as (in state court) how lavishly the respective counsel have funded the judge's reelection campaign, or (in administrative proceedings) what sort of "performance" targets the agency's ALJs are expected to meet. For example, I would have to imagine that a jury would do a vastly better (and more ethical) job of deciding asylum applications than immigration judges do. (But obviously the nondelegationists would not be interested in that sort of reform.)
posted by Not A Thing at 12:33 PM on May 24, 2022 [1 favorite]
I'll confess I'm not entirely comfortable with where the dissent ends up, though, correct or not . As I read it, the dissent would allow Congress to take all civil disputes under federal law away from the courts if it wants to, which doesn't seem right. But the majority is too far gone in originalism to make the sort of policy arguments that would shed some light on where the line should be drawn. (I mean, the idea that the line should be based on on what sort of actions were tried at common law in 1789 is too ridiculous for anyone to entertain without extensive Federalist Society indoctrination.)
Discussion of whether juries in fact "suuuuuuuck" could perhaps go in the sortition thread, but I would be interested in any actual evidence that they are inferior to judicial fact-finding -- which tends to depend heavily on what sort of mood the judge is in today, as well as (in state court) how lavishly the respective counsel have funded the judge's reelection campaign, or (in administrative proceedings) what sort of "performance" targets the agency's ALJs are expected to meet. For example, I would have to imagine that a jury would do a vastly better (and more ethical) job of deciding asylum applications than immigration judges do. (But obviously the nondelegationists would not be interested in that sort of reform.)
posted by Not A Thing at 12:33 PM on May 24, 2022 [1 favorite]
Who are the peers of a corporation? What does it mean for a corporation to be tried by a jury of its peers? A panel of representatives from shareholder boards? Jury trials seem fundamentally predicated on us already living in an equitable society where citizens are fungible, but even though corporations have won speech rights, I don't think they're full blown citizens yet. And so, the 7th amendment doesn't apply because corporations are not citizens. If they want jury trials, then specific directors of the corporation should be getting put on trial. They shouldn't get to double dip into both limited liability and citizen rights.
posted by I-Write-Essays at 1:50 PM on May 24, 2022 [1 favorite]
posted by I-Write-Essays at 1:50 PM on May 24, 2022 [1 favorite]
...and if corporations are 'people' with the same rights as people, why are they not required to be 18 years old (or 21 or whatever) in order to participate in our democracy?
posted by MtDewd at 4:58 PM on May 24, 2022
posted by MtDewd at 4:58 PM on May 24, 2022
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