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Wed Dec 2, 2020, 10:44 AM

The Supreme Court Wants to Revive a Doctrine That Would Paralyze Biden's Administration

It could cripple even the most basic government functions.

Joe Biden promised us an FDR-sized presidency—starting with bold action to halt the spread of COVID-19, end the worst economic downturn in decades, and stop the climate crisis. Biden could use regulation and executive action to move quickly to decarbonize the economy, cancel student loan debt, and raise wages. But a Biden administration has an even bigger problem than two long-shot special elections in Georgia: the new 6–3 conservative majority on the Supreme Court may soon burn down the federal government’s regulatory powers.

At least five conservative justices have signaled that they are eager to revive the “non-delegation doctrine,” the constitutional principle that Congress can’t give (“delegate”) too much lawmaking power to the executive branch. On paper, the rule requires Congress, when delegating power to an agency, to articulate an “intelligible principle” (like air pollution regulation needed “to protect public health”) to guide the agency’s exercise of that power. But in practice, the nondelegation doctrine is effectively dead. The court has only struck down two statutes on nondelegation grounds—and none since 1935.

Today, most of the government’s work is done through the “administrative state,” the administrative agencies and offices, like the Environmental Protection Agency, the Department of Labor, and the Department of Education, which issue regulations and enforce laws. Congress doesn’t have the capacity to pass laws that nimbly address complex, technical, and ever-changing problems like air pollution, COVID-19 exposure in workplaces, drug testing, and the disposal of nuclear waste. So Congress tasks agencies staffed with scientists and other specialists to craft regulations that directly address those problems. This division of responsibility—Congress legislates policy goals and agencies implement them effectively—is the foundation of functional government.

(snip)

Government doesn’t work without the administrative state. But that’s sort of the point. The conservative justices have long been hostile to regulation and executive action. And now they may finally have the votes to bring virtually any regulation to a halt. At least five justices are ready to drop a 1,000-pound anvil on any Biden administration rule that displeases them.

https://slate.com/news-and-politics/2020/12/supreme-court-gundy-doctrine-administrative-state.html

If he doesn't want to return to the Gilded Age, Biden will have to pack the SCOTUS - and not just with moderates. McConnell would block every nominee in the Senate unless they are rightwing extremists. There is so much riding on the GA Senate runoffs.

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Reply The Supreme Court Wants to Revive a Doctrine That Would Paralyze Biden's Administration (Original post)
Lasher Dec 2020 OP
Solly Mack Dec 2020 #1
samnsara Dec 2020 #2
Lasher Dec 2020 #4
appalachiablue Dec 2020 #3
rso Dec 2020 #5
Lasher Dec 2020 #25
rso Dec 2020 #27
Mister Ed Dec 2020 #6
Lasher Dec 2020 #9
Mister Ed Dec 2020 #12
Harker Dec 2020 #15
Lasher Dec 2020 #23
Mister Ed Dec 2020 #24
mjvpi Dec 2020 #19
malthaussen Dec 2020 #7
Baitball Blogger Dec 2020 #8
lagomorph777 Dec 2020 #26
Universal Karma Dec 2020 #10
jalan48 Dec 2020 #13
KPN Dec 2020 #11
ET Awful Dec 2020 #14
jmowreader Dec 2020 #20
ET Awful Dec 2020 #22
Baked Potato Dec 2020 #16
PatrickforO Dec 2020 #17
lastlib Dec 2020 #18
3825-87867 Dec 2020 #21
Dark n Stormy Knight Dec 2020 #28
FM123 Dec 2020 #29

Response to Lasher (Original post)

Wed Dec 2, 2020, 10:51 AM

1. K&R

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Response to Lasher (Original post)

Wed Dec 2, 2020, 10:55 AM

2. defund the presidency?

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Response to samnsara (Reply #2)

Wed Dec 2, 2020, 11:01 AM

4. The GOP has finally gotten the activist judges they pretended to abhor.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 10:59 AM

3. The US faces enormous challenges, this issue is way beyond

the scope of most people's corporate news intake.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 11:02 AM

5. Scotus

We’re going to need more than a 50/50 Senate if we want to change the rules to pack the Court, as Joe Manchin has already ruled out voting for changing the rules. Looks like 2022 will be our earliest opportunity, unless a Republican Senator in a State where there is a Democratic Governor dies or resigns. But of course, a 50/50 Senate, with VP Harris breaking ties would be immensely beneficial for many other Biden initiatives which do not include changing the rules.

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Response to rso (Reply #5)

Wed Dec 2, 2020, 03:28 PM

25. Manchin is one of my 2 senators.

When he was first elected to the Senate in 2010, and while the rules there were still being deliberated, I begged him to do what he could to eliminate the filibuster. I argued that Republicans were going to rescind this tradition as soon as they regained control there. This being the case, as it turned out to be, it was foolish for Senate Democrats to be under this constraint while a future GOP Senate would not be.

I received a form "fuck you" reply, paid for by taxpayers.

Like a number of other US Senators, Joe loves the power he enjoys there. Since the filibuster is one form of that, he is not willing to let it go. But being more relevant, he is trying to figure out how he could ride the Trump Train to victory in a state that's turned into a bunch of Nazis.

ETA: The Senate rules don't have to be changed, since only a simple majority is needed to conform a SCOTUS nominee - thanks to McConnell.

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Response to Lasher (Reply #25)

Wed Dec 2, 2020, 04:16 PM

27. Manchin

Yes, only a simple majority is needed now to approve a nominee, but in order to pack SCOTUS by increasing its size, a rule change would be required.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 11:21 AM

6. K&R, and thank you. But please, please, people: stop saying Biden needs to "pack the courts"!

The GOP already has packed the courts, with right-wing activist judges.

Good Dog in Heaven, our messaging is just awful sometimes.



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Response to Mister Ed (Reply #6)

Wed Dec 2, 2020, 11:51 AM

9. I would like to know if you have a better way to describe this critical need.

Or if you have a better solution.

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Response to Lasher (Reply #9)

Wed Dec 2, 2020, 12:21 PM

12. "Balance the courts"? "Court reform?" Almost any label for this critical need would be better.

Last edited Wed Dec 2, 2020, 01:10 PM - Edit history (1)

"Packing the courts" sounds nefarious, corrupt, and underhanded. And indeed, the Republican packing of the courts has been nefarious, corrupt, and underhanded. But they're too clever with their labeling to go out in front of the public and declare that they're busy "packing the courts".

Now that they have so thoroughly packed the courts, we'd be awfully foolish to describe any corrective measures we take as an initiative to "pack the courts". That sounds to voters like a corrupt, unethical power grab when in reality it's an effort to undo a corrupt, unethical power grab.

As a footnote, please understand that this is not a plea to you personally, but to Democrats everywhere. We have got to do better with our framing.

P.S. On edit: I think "Unpack the courts" may be the simplest and best phrase to use.

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Response to Mister Ed (Reply #12)

Wed Dec 2, 2020, 01:10 PM

15. That's a sound reply.

You're absolutely right, and have presented some good alternatives.

"Packing the courts" sounds much like "stuffing the ballot box."

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Response to Mister Ed (Reply #12)

Wed Dec 2, 2020, 02:23 PM

23. You are right, we've got to do better with our messaging.

We should be able to improve on that messaging unless Biden goes full blown kumbaya on us - which I think he will.

Maybe balance the courts would be a better battle cry. But if you believe one word of the linked Slate article, then you will know this as an affront to most of the things we should cherish as Democrats. A counterattack is essential.

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Response to Lasher (Reply #23)

Wed Dec 2, 2020, 02:41 PM

24. You're so right. A counterattack is absolutely essential.

You can't make nice with an opponent whose only goal is to destroy you. And that is the goal of Mitch McConnell's senate.

Thanks again for bringing this important information to the attention of DU'ers. Otherwise, this sort of sneak attack on Biden's presidential powers could easily fly under the radar. The right-wing activist judges on the court want an all-powerful, "unitary executive" sort of presidency when a Republican holds the office, and want extremely limited presidential powers when a Democrat is voted in.

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Response to Lasher (Reply #9)

Wed Dec 2, 2020, 01:34 PM

19. Unpack the courts.

The Republicans have packed the courts, most notably by Trump, over the last 40 years. They are still way ahead of the game. They have been spending heavily on stage AG races as part of the same strategy.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 11:25 AM

7. Yes, yes! This is what the GOP really want...

... they long for the Cuyahoga to burn again. Abortion? Who really cares how many people flush their fetuses? That's just a grift they've been running for a long time to get people to vote for them, so they can enact their real agenda, which they have been doing all through Mr Trump's Administration. Deregulate industry and rape what is left of the Commons, so corporations can make more of that sweet, sweet money.

-- Mal

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Response to Lasher (Original post)

Wed Dec 2, 2020, 11:35 AM

8. Time to grow the Supreme Court.

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Response to Baitball Blogger (Reply #8)

Wed Dec 2, 2020, 03:39 PM

26. Per Trump/McConnell rules, time to ignore the Supreme Court.

They have been damaged and corrupted to the point where the nation is endangered by their recklessness.

They have no army. Fuck 'em.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 11:54 AM

10. Wi Scotus

 

Is the blueprint.

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Response to Universal Karma (Reply #10)

Wed Dec 2, 2020, 12:41 PM

13. This reminded me of Wisconsin as well. If you lose the election you restrict the powers of the

incoming Governor or President in this case.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 12:13 PM

11. Simple expand the court post haste. But win those 2 seats in Georgia first.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 01:08 PM

14. They seem to have forgotten their beloved "unitary executive" theory.

n/t

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Response to ET Awful (Reply #14)

Wed Dec 2, 2020, 01:37 PM

20. They didn't forget

But it’s only applicable to Republican presidents.

We are at the point where getting rid of political parties and going to direct federal election funding is the only thing that makes sense.

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Response to jmowreader (Reply #20)

Wed Dec 2, 2020, 01:58 PM

22. Hell, we were at that point about 200 years ago (give or take a score or two)

n/a

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Response to Lasher (Original post)

Wed Dec 2, 2020, 01:22 PM

16. Trump gave them a taste of government run by CEOs

Republicans are elected to control money and only trust others like themselves who make every decision on how the bottom line is affected. Everything else that happens is collateral happenstance to the action of generating profit.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 01:28 PM

17. Leave it to Republicans. Every single time a Democrat wants

to use tax dollars we pay into our government, supposedly that is 'of, by and for,' the people, for programs that actually benefit us, a Republican comes along and throws a wrench in it.

Every.

Single.

Time.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 01:31 PM

18. An even better solution to the court problem:

1) Create a National Court of Appeals. (pack it with 25 good young progressives.) All appeals from circuit courts go here.

2) Strip SCOTUS of all appellate jurisdiction (yes, Congress can do this.) Leave it with only its constitutional original jurisdiction. All appeals wil go to the national court of appeals.

Right-wing Scotus is effectively out of the picture--Clarence PubicHair gets all the nap-time he wants, and BeerBoy Kav can stay drunk and disorderly all the time. Problems solved.

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Response to Lasher (Original post)

Wed Dec 2, 2020, 01:50 PM

21. INstead of "packing the court", how about evening it out?

Equal number of justices would force either side to compromise at times. If they don't, the case goes back.

Ideas?

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Response to Lasher (Original post)

Thu Dec 3, 2020, 01:54 AM

28. Of course, as soon as an R is POTUS again,

they'll change it back.

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Response to Lasher (Original post)

Fri Dec 4, 2020, 09:29 PM

29. Yes. This can not be said enough: there is so much riding on the GA Senate runoffs.

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