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The Case That Could Destroy the Government
- thaumasiotes 3y agoThe image heading this article shows traditional Greek-style marble columns toppling over as if they are rigid single objects. Greek columns can't topple like that because they aren't single objects. They are built of horizontal sections in a vertical stack. In Imperial Rome, the very most prestigious kind of column was a rather ugly type made of Egyptian granite. Columns like this were prestigious because they were staggeringly expensive, and I believe the shipping cost -- of a column that was in fact just one piece -- was a major contributor to the exorbitant price.
- vore 3y agoI don't think visual metaphors have to be historically accurate.
- samplatt 3y agoNo, but it's nice when they are, because it makes the audience feel clever and occasionally allows more meaning to be conveyed.
- zingababba 3y agoPerhaps these are cheap Americanized replicas, thus acting as a poignant metaphor for ah I give up.
- nwiswell 3y agoThe Doric columns in the Old Supreme Court chamber were monolithic marble. I hadn't expected the visual metaphor to be so literally applicable! https://www.aoc.gov/explore-capitol-campus/buildings-grounds/capitol-building/senate-wing/old-supreme-court-chamber https://www.aoc.gov/explore-capitol-campus/buildings-grounds...
- thaumasiotes 3y agoYour link doesn't appear to mention any columns that aren't sandstone? It also doesn't say whether those columns were monolithic or not.
- nwiswell 3y agoPage 9 https://www.supremecourt.gov/visiting/InteriorBrochureWebVersion_FINAL_May2022.pdf https://www.supremecourt.gov/visiting/InteriorBrochureWebVer...
- ajakate 3y agohttps://web.archive.org/web/20231128020909/https://www.theatlantic.com/ideas/archive/2023/11/securities-and-exchange-commission-v-jarkesy-supreme-court/676059/ https://web.archive.org/web/20231128020909/https://www.theat...
- Pixie_Dust 3y agoNever trust anyone sporting a manicured goatee :o
- deleted 3y ago[deleted]
- readthenotes1 3y ago[flagged]
- jjulius 3y agoThis feels like a disingenuous interpretation rooted in some pretty strong biases.
- swayvil 3y ago[flagged]
- chrisco255 3y agoThe original article is just that. "Destroying the government" is emotional hyperbole, and beyond disingenuous.
- jjulius 3y agoAt least it takes the time to expand on that idea rather than just tossing it out flippantly, eg GP.
- chrisco255 3y agoIt doesn't expand on that idea. It starts with a a click bait title and then it devolves from there. The government will survive, society will not collapse, chaos will not reign, the sky will not fall.
- readthenotes1 3y agoIt may feel like that to you, but it didn't to me (though I find your reply reflexive). The article writes in fear that the Supreme Court may decide that something the government is doing is unconstitutional without providing anything else. It neither discusses the case from a legal perspective nor provides alternatives nor shows any level of deep knowledge or access to someone with such.
- shrubble 3y agoIt's not very well-argued, in that if regulation was pervasive since the founding as the author states, then what would unwinding something from the New Deal era accomplish in the grand scheme of things?
- lumost 3y agoNew deal was about 90 years ago. It doesn’t seem believable that the ideal form of the US government was a situation from 90 years ago. Hopefully this is a case where the ruling would be defacto recognition of the modern agency as a delegate of congress.
- chrisco255 3y agoIt would seem most likely that some things were ideal 90 years ago and some things are ideal today. In other words, it's not that government or society gets better over time in all vectors. Certainly it regresses on many of them over time, and some things suffer from atrophy and entropy, even things that may have been a good idea at the time may no longer serve their intended purpose, or may hold society back on some vectors due to over investment in programs designed decades ago.
- defrost 3y agoIt would accomplish a Supreme Court precedent that would allow unwinding all the delegation of regulation and enforcement since the founding based on a partial reading of Madison and Hamilton (just the bits that extreme libertarians like without any of the "but also" stuff). If that were to happen then all oversight of any company deals would fall to the specific whims of whomever the current US Congress might be .. time permitting, of course. At the current scale of the US that's a recipe for any goes as there's too much going on for a small group tasked with running the entire nation to stay on top of (hence the introduction of delegation initially).
- rayiner 3y agoYou think the framers went to all that trouble to create this complex process for making laws between two houses of the legislature and the signature of the president, but thought it would be totally cool for unelected bureaucrats in some executive branch agency to do the same thing? Arguments about the “current scale of the US” obviously don’t tell you what the Constitution means. And even on its own terms that argument makes no sense. The federal government isn’t in charge of “running the entire nation.” It’s pretty remarkable to say that we should ignore the tripartite system of government because that’s makes it easier to disregard federalism.
- deleted 3y ago[deleted]
- ksherlock 3y agoI first heard about this a few days ago in a WSJ editorial Their take? Well, the editorial was titled "The Supreme Court Considers the Right to Trial by Jury", so, yeah, they considered it a good thing. Then there's this, which is 20 paragraphs of scaremongering about fringe legal theories that will destroy the government. Wikipedia seems to agree that it's about the 7th amendment and administrative law judges. https://www.wsj.com/articles/the-supreme-court-considers-the-right-to-trial-by-jury-sec-jarkesy-regulation-civil-rights-5abde7e7 https://www.wsj.com/articles/the-supreme-court-considers-the... https://en.wikipedia.org/wiki/SEC_v._Jarkesy https://en.wikipedia.org/wiki/SEC_v._Jarkesy
- claytongulick 3y agoThe Atlantic seems to have a pronounced political bias. I am occasionally pleasantly surprised by some of their reporting, but I've mostly found the quality (or lack thereof) to be roughly on par with this article.
- jeffbee 3y agoThe "Ideas" section of the Atlantic is the least doctrinaire of all. They run all kinds of stuff in there. It's almost like a blog aggregator. You'll note this is the author's first contribution to the magazine.
- claytongulick 3y agoThanks for mentioning that, I wasn't aware. It helps explain some of the variation I see there.
- deleted 3y ago[deleted]
- torstenvl 3y agoThis is partisan hackery. For a more well-balanced account: https://www.scotusblog.com/2023/11/justices-to-consider-multi-pronged-constitutional-attack-on-sec/ https://www.scotusblog.com/2023/11/justices-to-consider-mult... Note that the above link still takes the stance that the 5th Circuit was "bold" in its interpretation. However, unlike the OP, it clearly explains why, rather than spreading FUD everywhere.
- selimthegrim 3y agoWell let's hope it goes better for the SEC than this one: https://newrepublic.com/article/158088/mr-sloan-went-washington https://newrepublic.com/article/158088/mr-sloan-went-washing...
- rayiner 3y agoIt’s better to read the SCOTUSblog coverage without the editorializing: https://www.scotusblog.com/case-files/cases/securities-and-exchange-commission-v-jarkesy https://www.scotusblog.com/case-files/cases/securities-and-e.... The issues in the case are: > 1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. Reading newspaper coverage of legal cases is a wild ride. Imagine The Atlantic trying to summarize a contentious GitHub issue for some widely used piece of software. Joking aside, it’s worth addressing a specific point raised in the article: > This is wild stuff. Not long ago, a lawyer would have been laughed out of court for making such nondelegation claims. The non-delegation doctrine is not “wild stuff.” Apart from being inherent in the idea of three branches of government with distinct, separated powers, the Supreme Court explained back in 1928 that there were limits on Congress’s ability to delegate lawmaking powers to regulatory agencies. It so happens that—under the threat of court packing—Supreme Court in the 1930s whittled separation of powers down to almost nothing. It is entirely permissible and appropriate for those precedents to be revisited. The thing is, it probably is unconstitutional to have these executive branch agencies that exercise the powers of all three branches of government: making regulations with the force of law, prosecuting people for violating them, and adjudicating those cases. Stare decisis is a discretionary doctrine. We’re not stuck with those old, wrongly decided precedents forever.
- r00fus 3y agoThe Supreme Court sure seems like they want to challenge everything that Congress or the Executive branch executes. They threaten to do so publicly. Congress ought to likewise threaten to pass laws that have allow no judicial review or the President should threaten to reform the Court. Both are explicitly allowed in the Constitution.
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- knocte 3y agoClickbait -> it would destroy's Government ability to create unlimited agencies, not to destroy the Government. sigh
- M95D 3y agoSame thing. Governments can't govern without those.
- friend_and_foe 3y agoGovernments can govern withdout unlimited agencies just fine.
- jmyeet 3y agoThis Supreme Court is, and always has been, political. The idea of the "textualist" or "originalist" interpretation of the Constitution as a philosophy is just propaganda invented in the 1980s shortly after the Federalist Society was founded. This court seems determined to overturn Chevron [1], which is the basis for deference given to administrative bodies empowered by Congress, the so-called "administrative state" (or "deep state" depending on how far down the rabbit hole you are). It's the same politics behind the major questions doctrine [2]. This was an approach invented by this court that basically says in matters of statutory interpretation if the issue is sufficiently large, which is subjective, then Congress needs to be absolutely explicit in the powers granted. This was used to deny student loan forgiveness because even though the exeuctive was granted this power, the Court decided the amount was large enough that Congress had to be more explicit. Put another way: the legislative branch is overruling both the legislative branch that drafted a law and the executive branch that signed it into law. It's quite literally legislating from the bench. Chevron is another prong in the attack on executive authority. Instead of deferring to experts in the various departments, Congress would need to decide every matter. So if the law isn't explicit enough (according to SCOTUS) then Congress would need to decide every little thing with new laws. This is untenable. Congress doesn't have the bandwidth to, say, decide fish quotas or hunting seasons or, more importantly, things like what constitutes "clean water" and the allowed actions to enforce that. This is a very deliberate attack on government itself. It's a form of deregulation to transfer even more wealth to the hands of the very few. Why? Complying with regulations costs money. That's what this is about. [1]: https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura.... [2]: https://en.wikipedia.org/wiki/Major_questions_doctrine https://en.wikipedia.org/wiki/Major_questions_doctrine
- nradov 3y agoWhy doesn't Congress have the bandwidth to decide fish quotas or hunting seasons or the definition of clean water? The Affordable Care Act (Obamacare) was 906 pages. Congress had bandwidth to deal with that. The other issues you listed are relatively simple by comparison.
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- nradov 3y agoIt's so bizarre that this article considers forcing the Federal government to operate within legal limits to be terrifying. This is not an actual problem. If there is a legitimate need for more governmental authority then that can be addressed through the defined legislative process.
- matthewdgreen 3y agoThe laws and procedures the court is undoing here were all adopted through the defined legislative process, and could have been adjusted through the defined legislative process if voters’ representatives wanted that done. These court rulings will just limit Congress’s power to execute the will of the voters.
- nradov 3y agoIt is far more important to operate within Constitutional limits than to execute the will of the voters. We shouldn't allow the tyranny of the majority.
- error_logic 3y agoIt is most important for the regulations and enforcement to be implemented with a focus on constructive win-win interactions. Whether older constitutional interpretations or more centralized ones do that more effectively is ultimately determined by government officials and their incentives.
- taylodl 3y agoSo you propose tyranny of the minority instead?
- nradov 3y agoI propose following the Constitution strictly as written with a very narrow interpretation. And if some people think the federal government needs more power then they are welcome to propose an amendment.