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I suppose Congress could use its power under Article III’s Exceptions Clause to strip the federal courts (including the Supreme Court) of jurisdiction to hear c

I suppose Congress could use its power under Article III’s Exceptions Clause to strip the federal courts (including the Supreme Court) of jurisdiction to hear cases challenging an agency’s adherence to its enabling statute. Courts would still always be able to hear constitutional challenges, of course.

freejazz 2y ago
And wouldn't this court still take this kind of challenge on constitutional grounds? That congress has no power to give legislative authority to an executive agency?
- jtbayly 2y ago
  I assume so, as they should, since the constitution forbids it. This was the whole point of the separation of powers. If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.
  - underlipton 2y ago
    And I suppose that soldiers who are in the middle of combat shouldn't be able to choose where to point their rifles without congressional approval? Do we need a bill for each new weapons system, since their procurement and use won't have been specifically called for in statute? Etc.
    - jtbayly 2y ago
      Congress already decides how much to spend and on what weapons systems for the various branches of the military. Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.” In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.
      - jordanb 2y ago
        > Congress already decides how much to spend and on what weapons systems for the various branches of the military. Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program. > The authority to command the armed forces is directly under the executive The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.
        jtbayly 2y ago
        My argument is that we have been lax with the separation of powers. Congress is required to declare war before the President can direct the armed forces into combat, for example. This has failed recently. Congress also must not declare a permanent generic war, and then leave it up the the executive branch free to do whatever it wants with the military. Or, if they declare war on French Guiana, that doesn’t give the president freedom to attack Georgia. The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.
  - philipov 2y ago
    You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the court these powers in the first place. What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
    - throwup238 2y ago
      Alito is as much an originalist as he is a vampire squid.
      - philipov 2y ago
        I am likely to believe he is one of those. Guess which one.
        throwup238 2y ago
        Definitely the vampire squid. SCOTUS hasn't had a real originalist in like 200 years.
        philipov 2y ago
        You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.
        deleted 2y ago
        [deleted]
        dudeinjapan 2y ago
        > …the Constitution doesn't say… that you should only interpret the Constitution based on what it says. So we should interpret it based on the things it doesn’t say?
  - SubiculumCode 2y ago
    Unless the world turns to 1s and 0's, execution of a law will always in part depend on interpretation of the law by the executor. To pretend otherwise is to mistake ideals for reality.
    - jtbayly 2y ago
      Who is pretending otherwise? Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality. Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.
  - Gibbon1 2y ago
    If congress doesn't like how federal agencies implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.
    - jtbayly 2y ago
      The whole point of courts is to be the place of judgment as to whether a law is actually being violated or not. Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“ The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.
- anon373839 2y ago
  You're completely right; my thought experiment was half-baked. A challenge to an agency's use of delegated power is necessarily a constitutional challenge. So, unless Marbury were overturned, this wouldn't fly.
deleted 2y ago
[deleted]
rayiner 2y ago
Congress could do that. But I don’t think democrats would like what the next Republican administration would do with that precedent.
- cchance 2y ago
  You do realize the dems doing something and the reps following up with the same thing, doesn't somehow stop the republicans for just doing it themselves lol, I'll never understand this bullshit stance "democrats cant do it because then maybe republicans will do it later" ... i mean how does not doing it ever stop republicans from doing it anyway later lol... this stance is what has fucked democrats for decades, this obliviousness that republicans have no issue jumping directly to extremes, like saying ROE was settled law and then overturning it in a fucking massive partisan ruling.
  - rayiner 2y ago
    Overruling Roe wasn’t “extreme,” it was literally the lowest hanging fruit on the tree. At the time it was decided, a prominent law professor noted that it’s “not constitutional law and gives almost no sense of an obligation to try to be.” It was the left’s version of Lochner—a decision so irrational that by the end liberals could only defend it on the ground it was precedent. On top of everything else, Roe was an aberration internationally. When Macron criticized the U.S. Supreme Court for overturning Roe, he got the French people to approve an amendment to add an abortion right to the French constitution. Of course, French courts wouldn’t just gin such a right into existence from thin air, because they’re not lawless. I don’t know if anyone picked up on the irony of that. The real chumps are Republicans. They should appoint justices that will create the conservative version of the Warren Court. Adopt Democrats’ preferred “emanations from penumbras” standard for interpreting the constitution. I bet you can find some cool stuff in “emanations from penumbras” of the second amendment, the contract clause, etc.
    - a123b456c 2y ago
      Like the right to bear arms? There is no literal reading of the second amendment that grants gun rights to individuals outside of well regulated militias.
anticensor 2y ago
Or go the European way and require regulations to explicitly list which act(s) of Congress they are based on.

freejazz 2y ago

And wouldn't this court still take this kind of challenge on constitutional grounds? That congress has no power to give legislative authority to an executive agency?

jtbayly 2y ago
I assume so, as they should, since the constitution forbids it. This was the whole point of the separation of powers. If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.
- underlipton 2y ago
  And I suppose that soldiers who are in the middle of combat shouldn't be able to choose where to point their rifles without congressional approval? Do we need a bill for each new weapons system, since their procurement and use won't have been specifically called for in statute? Etc.
  - jtbayly 2y ago
    Congress already decides how much to spend and on what weapons systems for the various branches of the military. Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.” In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.
    - jordanb 2y ago
      > Congress already decides how much to spend and on what weapons systems for the various branches of the military. Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program. > The authority to command the armed forces is directly under the executive The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.
      - jtbayly 2y ago
        My argument is that we have been lax with the separation of powers. Congress is required to declare war before the President can direct the armed forces into combat, for example. This has failed recently. Congress also must not declare a permanent generic war, and then leave it up the the executive branch free to do whatever it wants with the military. Or, if they declare war on French Guiana, that doesn’t give the president freedom to attack Georgia. The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.
- philipov 2y ago
  You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the court these powers in the first place. What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
  - throwup238 2y ago
    Alito is as much an originalist as he is a vampire squid.
    - philipov 2y ago
      I am likely to believe he is one of those. Guess which one.
      - throwup238 2y ago
        Definitely the vampire squid. SCOTUS hasn't had a real originalist in like 200 years.
        philipov 2y ago
        You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.
        deleted 2y ago
        [deleted]
        dudeinjapan 2y ago
        > …the Constitution doesn't say… that you should only interpret the Constitution based on what it says. So we should interpret it based on the things it doesn’t say?
- SubiculumCode 2y ago
  Unless the world turns to 1s and 0's, execution of a law will always in part depend on interpretation of the law by the executor. To pretend otherwise is to mistake ideals for reality.
  - jtbayly 2y ago
    Who is pretending otherwise? Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality. Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.
- Gibbon1 2y ago
  If congress doesn't like how federal agencies implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.
  - jtbayly 2y ago
    The whole point of courts is to be the place of judgment as to whether a law is actually being violated or not. Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“ The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.
anon373839 2y ago
You're completely right; my thought experiment was half-baked. A challenge to an agency's use of delegated power is necessarily a constitutional challenge. So, unless Marbury were overturned, this wouldn't fly.

deleted 2y ago

[deleted]

rayiner 2y ago

Congress could do that. But I don’t think democrats would like what the next Republican administration would do with that precedent.

cchance 2y ago
You do realize the dems doing something and the reps following up with the same thing, doesn't somehow stop the republicans for just doing it themselves lol, I'll never understand this bullshit stance "democrats cant do it because then maybe republicans will do it later" ... i mean how does not doing it ever stop republicans from doing it anyway later lol... this stance is what has fucked democrats for decades, this obliviousness that republicans have no issue jumping directly to extremes, like saying ROE was settled law and then overturning it in a fucking massive partisan ruling.
- rayiner 2y ago
  Overruling Roe wasn’t “extreme,” it was literally the lowest hanging fruit on the tree. At the time it was decided, a prominent law professor noted that it’s “not constitutional law and gives almost no sense of an obligation to try to be.” It was the left’s version of Lochner—a decision so irrational that by the end liberals could only defend it on the ground it was precedent. On top of everything else, Roe was an aberration internationally. When Macron criticized the U.S. Supreme Court for overturning Roe, he got the French people to approve an amendment to add an abortion right to the French constitution. Of course, French courts wouldn’t just gin such a right into existence from thin air, because they’re not lawless. I don’t know if anyone picked up on the irony of that. The real chumps are Republicans. They should appoint justices that will create the conservative version of the Warren Court. Adopt Democrats’ preferred “emanations from penumbras” standard for interpreting the constitution. I bet you can find some cool stuff in “emanations from penumbras” of the second amendment, the contract clause, etc.
  - a123b456c 2y ago
    Like the right to bear arms? There is no literal reading of the second amendment that grants gun rights to individuals outside of well regulated militias.

anticensor 2y ago

Or go the European way and require regulations to explicitly list which act(s) of Congress they are based on.