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Thu Jun 30, 2022, 01:05 PM

I can't shake the feeling the Court is Congress reaping what it has sown

For at least forty years, Congress has again and again thrown to the courts and other areas what they themselves probably should have been managing.

Think of how many advances we've made as a society that never made it through Congress but were instead tossed at the courts to or federal agencies to deal with. Reproductive freedom. LGBT rights. Climate change policy.

Once the Court well and truly flipped and started deciding, "Not our job. Not the EPAs job. It's Congress' job," there's chaos.

Codifying those things we want to keep into tangible law rather than relying on the vacillating interpretations of five people is something we should have been doing all along. But there is forever an election on the horizon. Stop me if you've heard this. "Now's not the time, because the election is 12, 9, 6, 3 months away . . ."

I'm not agreeing with the Court's recent rulings - far from. I am, however, suggesting that how our political system functions and how much we as voters and partisan actors have indulged it for so long was leading to this kind of inevitability.

Congress has sacrificed many of its roles and functions to the executive and judicial branches over the past 50 years. What we're seeing now can be directly traced to it. When we left our basic liberal advances in the hands of a few, we imperiled their lasting power.

Maybe it's time to stop writing everything on a political dry erase board and start doing things more concretely. Our representatives need to start taking stands and doing the work even if it makes their Novembers more difficult.

Just my thinking at the moment.

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Reply I can't shake the feeling the Court is Congress reaping what it has sown (Original post)
Sympthsical Jun 2022 OP
emulatorloo Jun 2022 #1
Sympthsical Jun 2022 #2
emulatorloo Jun 2022 #10
Sympthsical Jun 2022 #17
emulatorloo Jun 2022 #32
inthewind21 Jun 2022 #12
Effete Snob Jun 2022 #30
Effete Snob Jun 2022 #29
emulatorloo Jun 2022 #33
unblock Jun 2022 #3
inthewind21 Jun 2022 #13
unblock Jun 2022 #21
Effete Snob Jun 2022 #31
Demsrule86 Jun 2022 #4
Kingofalldems Jun 2022 #6
Sympthsical Jun 2022 #11
emulatorloo Jun 2022 #14
BlueCheeseAgain Jun 2022 #5
Sympthsical Jun 2022 #15
In It to Win It Jun 2022 #7
emulatorloo Jun 2022 #19
In It to Win It Jun 2022 #25
maxsolomon Jun 2022 #8
Sympthsical Jun 2022 #16
maxsolomon Jun 2022 #20
Sympthsical Jun 2022 #23
emulatorloo Jun 2022 #22
Sympthsical Jun 2022 #24
Aepps22 Jun 2022 #27
Effete Snob Jun 2022 #9
JCMach1 Jun 2022 #18
BootinUp Jun 2022 #26
PTWB Jun 2022 #28
dpibel Jun 2022 #34

Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:08 PM

1. The court can and does overturn laws that congress passed, so I guess I don't understand your post

Have a good one.

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Response to emulatorloo (Reply #1)

Thu Jun 30, 2022, 01:10 PM

2. Codifying Roe is the biggest example at hand

50 years since Roe, and it was never managed. It was never really seriously attempted. Sure it was introduced on occasions, but I don't recall any massive legislative battle over it like there was with, say, the ACA.

And I think, "We can't, the Court!" has increasingly become a dodge and a punt. An excuse for inaction.

Why try? Nothing works. The Court . . .

Eyeore isn't a good candidate to run for office.

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Response to Sympthsical (Reply #2)

Thu Jun 30, 2022, 01:25 PM

10. I still don't understand your post. This court would have overturned a Roe v Wade law.

Has nothing to do with Eyeore or your need to blame Democrats for what Republicans have done.

You want a different court and better laws? Vote Democratic. Every damn election.

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Response to emulatorloo (Reply #10)

Thu Jun 30, 2022, 01:46 PM

17. What's your evidence of this?

We have their logic and ruling on overturning Roe. Within that context, what is your evidence for your assertion?

We can't justify inaction because we just "know" things.

It goes back to that "Why bother" excuse making. You say people need to vote more. I whole-heartedly agree. But in the same sentence, you knee cap the sentiment by turning back the idea progress can be made. When you repeatedly tell people nothing can really be done, because the Court will just nuke it anyway, why are people voting for you?

You are basically telling the voters who are angry about Roe, "We can do nothing about this."

How is that a valid election tactic? Who does that get in the booth for you?

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Response to Sympthsical (Reply #17)

Thu Jun 30, 2022, 04:28 PM

32. We need to vote Democratic in order to change the make up of the courts.

A Democratic executive + a bullet proof Democratic majority in Congress.

It’s a pretty simple concept.

As an aside, see:

If anything is a motivator to you, imagine Ron DeSantis picking your SCOTUS justices
https://www.democraticunderground.com/100216873554

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Response to Sympthsical (Reply #2)

Thu Jun 30, 2022, 01:27 PM

12. Where I agree

in part that congress has shirked some of it's duties. The SC has ALWAYS been the final stop. And the current SC falls squarely on the shoulders of the voters. We've been watching the slow train wreck unfold for 40+ years. Guess who congress works for? The voters! And the voters have let them run amok. And yes, attempts to codify Roe were made. All failed. Here's a good read on the history since Roe.

https://19thnews.org/2022/01/congress-codify-abortion-roe/

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Response to inthewind21 (Reply #12)

Thu Jun 30, 2022, 03:57 PM

30. It is not ALWAYS the final stop


The Religious Freedom Restoration Act is an example of Congressional action to effectively reverse a Supreme Court decision.

https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

"The bill was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy (D-MA) the same day. A unanimous U.S. House and a nearly unanimous U.S. Senate—three senators voted against passage[3]—passed the bill, and President Bill Clinton signed it into law."

----------

What happened is that the Supreme Court had to occasionally decide "when does a law restrict religious freedom too much".

The prime case was a native American who was being held in a federal prison. His religion involved the use of peyote, a hallucinogenic cactus species which is a Schedule I narcotic.

The Supreme Court ruled that the prevailing judicial test of religious encumberment permitted the government to enforce the laws against peyote, and the prisoner did not have the right to practice his religion to the extent it required using peyote.

That and several other cases caused both the left AND the right to join together to say, "Nope, we are going to pass a federal law that recalibrates what other federal laws are subject to religious exemptions.

Continuing with Wikipedia:

----
This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore, the Act states that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."

The law provided an exception if two conditions are met. First, the burden must be necessary for the "furtherance of a compelling government interest." Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly to core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.
-----

So, after the passage of this law, the Supreme Court could not decide that some other test applied. Because, and this is worth understanding, the Constitution is mainly concerned with whether the government is restricting your rights, not expanding them.

But, in a purely structural way, it makes it very difficult to say "oh, this federal law applies generally with no religious exemption" when there is another law that defines how religious exemptions are to be understood to be a part of all other federal laws, provided the conditions are met.

RFRA has had an interesting history since then, and there are some further nuances.

But, yes, Congress can pass a law that defines what the limits of other laws can be, and RFRA is one of several examples of going back to Congress after a bad court decision in order to get a federal law to fix the court decision.

The problem is that our political system has become so sclerotic that people don't really understand how to use it dynamically.

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Response to emulatorloo (Reply #1)

Thu Jun 30, 2022, 03:56 PM

29. Congress can and does pass laws that supersede court decisions


Have you ever heard of the Religious Freedom Restoration Act?

Because it is a good example of the process working the other way. It would be worth a moment to learn this.

https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

"The bill was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy (D-MA) the same day. A unanimous U.S. House and a nearly unanimous U.S. Senate—three senators voted against passage[3]—passed the bill, and President Bill Clinton signed it into law."

----------

What happened is that the Supreme Court had to occasionally decide "when does a law restrict religious freedom too much".

The prime case was a native American who was being held in a federal prison. His religion involved the use of peyote, a hallucinogenic cactus species which is a Schedule I narcotic.

The Supreme Court ruled that the prevailing judicial test of religious encumberment permitted the government to enforce the laws against peyote, and the prisoner did not have the right to practice his religion to the extent it required using peyote.

That and several other cases caused both the left AND the right to join together to say, "Nope, we are going to pass a federal law that recalibrates what other federal laws are subject to religious exemptions.

Continuing with Wikipedia:

----
This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore, the Act states that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."

The law provided an exception if two conditions are met. First, the burden must be necessary for the "furtherance of a compelling government interest." Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly to core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.
-----

So, after the passage of this law, the Supreme Court could not decide that some other test applied. Because, and this is worth understanding, the Constitution is mainly concerned with whether the government is restricting your rights, not expanding them.

But, in a purely structural way, it makes it very difficult to say "oh, this federal law applies generally with no religious exemption" when there is another law that defines how religious exemptions are to be understood to be a part of all other federal laws, provided the conditions are met.

RFRA has had an interesting history since then, and there are some further nuances.

But, yes, Congress can pass a law that defines what the limits of other laws can be, and RFRA is one of several examples of going back to Congress after a bad court decision in order to get a federal law to fix the court decision.

The problem is that our political system has become so sclerotic that people don't really understand how to use it dynamically.

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Response to Effete Snob (Reply #29)

Thu Jun 30, 2022, 04:28 PM

33. Thanks appreciate it.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:15 PM

3. Yes and no.

Yes. It would have been better for congress to have done more to protect our rights, not that republicans would have allowed that. We might have gotten more legislative successes.

On the other hand, this Supreme Court would have still knocked most of that down. It is widely expected to deem a fetus a "person" next year, thus making state murder laws apply to abortions. Congress couldn't really do much about that.

Congress could allow or offer abortion on federal/tribal land, something already under discussion anyway. But abortion would still be murder in gestational slavery states.


So I think mostly, had congress acted to preserve rights, it would have merely changed the specific court cases. But regardless, this Supreme Court would have found another way to take us back to medieval times.

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Response to unblock (Reply #3)

Thu Jun 30, 2022, 01:29 PM

13. Congress

can't allow abortion on federal lands because of the Hyde amendment.

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Response to inthewind21 (Reply #13)

Thu Jun 30, 2022, 02:12 PM

21. Well yes, an act of congress allowing federal funds for abortion

would effectively modify or replace previous applicable legislation such as the Hyde amendment.

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Response to inthewind21 (Reply #13)

Thu Jun 30, 2022, 03:59 PM

31. Congress can get rid of the Hyde amendment


It is simply another act of Congress.

That's like saying they can't make the speed limits 100 mph on the interstates, because the speed limit is 70.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:15 PM

4. Another blame the Democrats post...and we will accomplish nothing if we lose elections...and courts

will always matter as they rule on the constitutionality of laws...such Roe or any codification of abortion into law. There is no way to bypass courts. This seems to me to be an excuse for what happened in the General when a group supposedly on our side refused to vote for the Democratic candidate in 2016 even though a SCOTUS pick was on the line...so this really is meaningless. We passed Campaign Finance but a righty congress took it away...courts matter and our only way out of this is to win elections and appoint more judges.

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Response to Demsrule86 (Reply #4)

Thu Jun 30, 2022, 01:20 PM

6. Exactly.

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Response to Demsrule86 (Reply #4)

Thu Jun 30, 2022, 01:25 PM

11. You're doing a fine job of illustrating my point

Specifically the indulgence of the practice. Your first knee jerk response is, "There is a criticism of my party implicit in here. Cannot be allowed!"

I'm talking about Congress as a whole. And if you cannot bring yourself to this moment in history and think, "You know. I think we made some mistakes that helped get us here. We should see what those are and come up with solutions," I don't know what to tell you. How does anyone learn anything at all when mistakes cannot be acknowledged without a highly partisan, "We have done nothing wrong, ever, in all history, and discussing the very idea is harmful and wrong."

I think you have it precisely backwards. I think opposition to even passing self-examination and reflection is exactly how we got where we are. If we do not reverse that course, we will get more of the same.

You want us to steer even harder towards the cliff.

It's just a pass for me.

When you look at the Court's rulings, you see that many of them come down to, "Congress never authorized this." They turn to that again and again. Yes, they can strike down laws as unconstitutional, but it is not their general go-to. Even their Roe ruling isn't, "Laws allowing abortion are unconstitutional." They said there is no law or constitutional right that guarantees it.

Great. So we'll write some laws.

I will never understand this human shielding of getting politicians out of their responsibilities. It's getting real tired. "Vote for me! I will be capable of doing nothing!"

That's a fucking clarion call right there.

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Response to Sympthsical (Reply #11)

Thu Jun 30, 2022, 01:34 PM

14. Nah your proving their point. You're condemning 'congress as a whole', but you're acting as if

Republicans don’t exist. They have done everything in their power to obstruct and block progress.

What is the answer to this obstruction? Vote and elect more Democrats. We need a bullet proof majority in Congress. Full stop.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:20 PM

5. I'm not sure if we're thinking about the same issues.

But one common thread in various recent SCOTUS decisions is that they say, "Congress didn't mean for POTUS to have that power. If Congress wants POTUS to have that power, they should pass a law saying so."

Like you say, this is sort of the reason for the EPA ruling. SCOTUS didn't say that the government can't regulate emissions, just that Congress hasn't given POTUS that power. It was also the reasoning behind barring OSHA's vaccine-or-test mandate.

Of course, SCOTUS knows that Congress won't do anything in this regard, so that they are effectively ending these policies. And SCOTUS does seem pretty selective sometimes about when POTUS is overstepping-- they ruled that TFG could bar immigration from certain Muslim countries, for example.

BTW, if Biden ever tries to forgive all student loan debt, you can be pretty sure that SCOTUS will say that Congress never intended for him to have that power.

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Response to BlueCheeseAgain (Reply #5)

Thu Jun 30, 2022, 01:37 PM

15. The reliance on executive orders is a big problem

Forget the individual issues like student debt relief and what have you. Just consider the entire system of it in general.

Every time we have an election, an entire system of laws and regulations change overnight. And Congress is incredibly happy and genuinely relieved they don't have to get involved. If they never have to vote for something, then they never have to answer for it come election time. "Wasn't us. The President did it!"

That's not a way to govern a stable representative system.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:22 PM

7. I was going to (and probably still will) write a post that gets at what you posted

I can't help but think that a dysfunctional Congress is the reason we have this fuckery that we find ourselves in. It goes beyond just adding more justices to the court, it's everything that Congress has the power to do and they never do it.

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Response to In It to Win It (Reply #7)

Thu Jun 30, 2022, 01:51 PM

19. Your OP is very good. It is pragmatic and strategic n/t

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Response to emulatorloo (Reply #19)

Thu Jun 30, 2022, 03:11 PM

25. Thank you!

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:23 PM

8. When was this magical window when Roe could have been codified?

During the Obama Supermajority that barely existed?

THE FILIBUSTER IS REAL. CONSERVATIVE, ANTI-CHOICE DEMOCRATS ARE REAL.

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Response to maxsolomon (Reply #8)

Thu Jun 30, 2022, 01:41 PM

16. When is there ever a magical window for anything?

McConnell seems to do just fine when he has a mind to do it.

At some point, you begin using the power available to you instead of hoping a President, a court, or a bureaucracy will bail you out. And if you cannot use that power, it becomes a matter of selecting for our party leadership people who will.

The same people have been more or less in charge for my entire adult life. If the answer to all this, "Just keep going on as we have," I fail to see why my intraparty loyalty should remain. Time for some new ideas with some new people who will approach the system differently and take seriously their function as a coequal branch with a responsibility to have a say-so in policy.

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Response to Sympthsical (Reply #16)

Thu Jun 30, 2022, 02:02 PM

20. Your Party loyalty should remain because there is no other choice.

None of us are happy that the best Senate Dems seem to accomplish is standing in the way of Repukes about half the time.

The specifics matter. McConnell baited Harry Reid into ending the Filibuster for Federal Judicial Nominees. In that way he is a better Senate tactician than Reid or Schumer.

But it is far easier to say no than it is to say yes. Passing legislation over the existence of the Filibuster is nearly impossible when 1 side NEVER negotiates in good faith.

So sure, change the party leadership. Who's a better choice than Schumer? Who can get the support to defeat him?

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Response to maxsolomon (Reply #20)

Thu Jun 30, 2022, 03:04 PM

23. Isn't that "Who's better?" question illustrative of the problem

One of the problems of extended leadership is the shallowness of our bench. When you consider who we talk about in Congress, there's the leadership and then a handful of other figures. If we had spent as much time as we ought to developing our membership for future leadership, we'd have more options available to us. We'd have a variety of ideas and approaches. It feels like, to me, that our leadership thinks it's the 1980s still, that Congress and politics the same ways as they ever did. Even President Biden went in thinking we were going back to the days of comity and cooperation. I mean, I can't decide if that was naivete or a startling lack of awareness.

And we're political junkies. The fact we have probably less than a dozen names in Congress whose names come up consistently in conversation isn't great.

I think a core re-examination of what we've been doing is overdue. I think it was overdue before this. But, if Roe doesn't prompt a course correction, I just cannot imagine what will.

It is far easier to say no in Congress, but unless the party starts pushing hard for some yes, what are we all doing here?

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Response to Sympthsical (Reply #16)

Thu Jun 30, 2022, 02:14 PM

22. McConnell 'does fine' because of the fillibuster. Biden is trying to get Senate Democrats to kill

it. He can’t do it, Congress has to do it. Two red state Dems are standing in the way. I hope Biden is successful in convincing them.

This wouldn’t even be an issue if voters had given us a bulletproof majority. But so far you seem resistant to suggestions that we need to elect more Democrats.

You’re response is to blame Pelosi and Shumer and I guess flirt with third party voting (which effectively just enables more Republicans to win) because you ‘fail to see why my intraparty loyalty should remain.’

Do you have any evidence that “the people in charge” like Pelosi and Schumer are blocking getting rid of the filibuster?

No you don’t because they aren’t.

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Response to emulatorloo (Reply #22)

Thu Jun 30, 2022, 03:07 PM

24. Simple question: Will we have 60 senators after November?

Yes or no?

And if the answer is no, and the filibuster remains, and you're still telling people things cannot be done and shouldn't even be attempted.

What's your sales pitch to voters right now?

If we take your outlook that we can do very little should we be elected, what motivation are you selling?

There is a point, and I feel we've reached it, where these endless streams of excuses are what is defeating us.

Republicans haven't had 60 senators, and they're making off with the country. People are starting to ask "Why can't we do that?" and I have not heard any satisfactory answers. I have heard a lot of excuses though.

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Response to Sympthsical (Reply #24)

Thu Jun 30, 2022, 03:23 PM

27. Burden of Competent Governing

The reason Republicans are able to work fine with the filibuster is that their voters never care that their policies don't actually make their individual lives better. They can run on nonsense because if you can count on your voters to vote for you no matter what you have an advantage. The leaders on our side are dealing with a different set of voters that aren't single issue voters. Even when Republicans screw up everything their voters still blame us instead of them.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:24 PM

9. That is true to a great extent

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 01:49 PM

18. Mainly because of the F'ing fillibuster... Kill the supermajority BS

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 03:16 PM

26. Dumb Americans want everything to be black and white

being a liberal democracy is just too complicated, they don't like being told what to do. If they can't feel it in their gut it must be wrong.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 03:28 PM

28. This is all very true.

 

I can’t help but think that had the courts not pressed forward with our freedoms and societal modernizations, the GOP obstructionism in congress would long ago have come to a head and we would no longer be in this predicament today.

That isn’t to say that I disagree with the courts picking up the ball when Congress dropped it, repeatedly. It’s just hard to imagine a world in which the right wing obstruction would have been allowed to continue if the courts hadn’t taken the edge off of the consequences of that obstruction.

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Response to Sympthsical (Original post)

Thu Jun 30, 2022, 05:32 PM

34. Legislation is not a "dry erase board"?

I have to be entirely misreading you.

It appears to me that you are arguing that legislative acts are less mutable than court decisions.

I'm not aware why it's stronger to have Congress declare Roe to the the law of the land than to have the Court do so. Do you actually think that this Court would have hesitated to strike down a codification of Roe?

Plus, legislation is subject to attack not just by the Supremes, but by any contrary Congress that comes along with enough votes to repeal a statute.

If you are arguing that the antidemocratic intransigence of the legislative process protects against such repeal, then you are making the point that others have made in this thread: When was the moment when that intransigence could have been overcome to enact a Roe law?

I must be missing something in your argument.

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