5 ms·

Couldn't congress explicitly strip the courts of their authority to review the Chevron-codifying law in the text of that same law?

cryptonector 2y ago
Congress can define the court's jurisdiction, but that's a very broad tool. By and large Congress doesn't do that. I suspect that it would be more practical to pack the court.
- mullingitover 2y ago
  Why is the potentially decades-long process of packing the court easier than inserting a section in a bill that says “btw, judges can’t review this specific law because it’s specifically written to revoke your recent power grab.”
  - lesuorac 2y ago
    Packing the court worked the last time when they tried to get in the way of the New Deal.
    - rayiner 2y ago
      Which ended up destroying the American republic and the constitutional system.
      - mullingitover 2y ago
        I don’t recall the collapse of the republic or the constitutional system, just decades of growing prosperity and rising standards of living culminating in the 1950s, the era everyone is desperate to return to.
        rayiner 2y ago
        For economic reasons unrelated to what was going on in the legal system. But the mid-20th century also saw a gutting of the constitutional system the founders had created, and replacement thereof with an unelected administrative state. You might want to read the room. Not just in the US, but across Europe as well, people are angry about their democracy having been stripped from them, and rule by unelected, unaccountable experts.
        mullingitover 2y ago
        Anti-intellectualism is nothing new, we’ve always dealt with spasms of it and the current one will pass. When you say unelected experts what you’re referring to are non-crony public servants who aren’t subject to the spoils system of party politics. No modern democracy could function without them. Extremists hate them because they offer a competent buffer against the chaos they hope to unleash.
        rayiner 2y ago
        It's not about "anti-intellectualism." I think cognitive elites, of which expert bureaucrats are a part, are critical to running society. But they have a moral obligation to stay in their lane. Elites must use their capabilities to do what the public wants them to do. Both in the U.S. and Europe, they have not been doing that, but instead have been abusing their authority to impose their own ideologies. Consider the 2016 "Resistance" by federal employees to the election of Donald Trump. The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss. Instead, they publicly and vocally declared their insubordination, both to the President and the public who elected him. Likewise, during the 2020 George Floyd riots, you saw public health experts allow their moral ideology to affect their expert recommendations--treating religious gatherings as somehow being different from social justice gatherings. My belief is that these things directly led to the debacle of the pandemic, when people refused to trust experts on vaccination--despite Trump telling them to take the vaccine. My dad spent his life working as a public health expert in the third world, and what happened was, while disappointing, not a surprise to him. A huge part of public health work is getting people to trust you. And you must earn that trust by putting the job first. If you go into a village in Bangladesh and people don't want to be treated by a woman doctor, you provide them a male doctor. You don't chastise them for their "sexism." My dad actually worked for a Planned Parenthood affiliate in Bangladesh. At least back in the 1980s, they were providing family planning services consistent with local beliefs, and not trying to impose western ideals on the public--something that would have swiftly destroyed trust. Most people who aren't that smart understand that and are deferential to their betters. But they also have an intuitive and accurate sense of what's an exercise of expertise, and what's a moral or political judgment. And when experts step out of their lane, they destroy the trust that's critical to doing their jobs.
      - deleted 2y ago
        [deleted]
  - bartc 2y ago
    That sounds equivalent to writing an unconstitutional law and tacking on “btw, you can’t rule that this law is unconstitutional”. Which is actually possible to do by amending the US Constitution, but good luck with that.
    - mullingitover 2y ago
      Marbury itself has no basis in the constitution. Congress can gut the powers the courts have carved out any time, what I’m suggesting is that it can be done with a surgical strike rather than going nuclear.
      - rayiner 2y ago
        This is a brave comment given that we are about to get 4 more years of Trump and probably a Republican house and senate.
      - cryptonector 2y ago
        Ironically Marbury was about Congress gutting the courts. Jefferson's Congress canceled 18 federal courts, leaving 18 judges (appointed by Adams at the end of his term, and who had not yet been seated) with no court to sit in! The case was a suit to force Jefferson's Secretary of State (Madison!) to give those new judges their commission. Marbury is a fairly complex case. Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.
      - cryptonector 2y ago
        Yet everyone has accepted Marbury. No one questions it. The reason is that it makes sense in the context of the constitution.
        mullingitover 2y ago
        This court has gone a long way to say that vibes aren’t a sufficient level of clarity anymore, so it’s only fair that this can work against the court’s allocation of power as much as it has worked for it.
  - deleted 2y ago
    [deleted]
  - cryptonector 2y ago
    Because the court can say that's not how you define its jurisdiction. I don't really know, to be sure.

cryptonector 2y ago

Congress can define the court's jurisdiction, but that's a very broad tool. By and large Congress doesn't do that. I suspect that it would be more practical to pack the court.

mullingitover 2y ago
Why is the potentially decades-long process of packing the court easier than inserting a section in a bill that says “btw, judges can’t review this specific law because it’s specifically written to revoke your recent power grab.”
- lesuorac 2y ago
  Packing the court worked the last time when they tried to get in the way of the New Deal.
  - rayiner 2y ago
    Which ended up destroying the American republic and the constitutional system.
    - mullingitover 2y ago
      I don’t recall the collapse of the republic or the constitutional system, just decades of growing prosperity and rising standards of living culminating in the 1950s, the era everyone is desperate to return to.
      - rayiner 2y ago
        For economic reasons unrelated to what was going on in the legal system. But the mid-20th century also saw a gutting of the constitutional system the founders had created, and replacement thereof with an unelected administrative state. You might want to read the room. Not just in the US, but across Europe as well, people are angry about their democracy having been stripped from them, and rule by unelected, unaccountable experts.
        mullingitover 2y ago
        Anti-intellectualism is nothing new, we’ve always dealt with spasms of it and the current one will pass. When you say unelected experts what you’re referring to are non-crony public servants who aren’t subject to the spoils system of party politics. No modern democracy could function without them. Extremists hate them because they offer a competent buffer against the chaos they hope to unleash.
        rayiner 2y ago
        It's not about "anti-intellectualism." I think cognitive elites, of which expert bureaucrats are a part, are critical to running society. But they have a moral obligation to stay in their lane. Elites must use their capabilities to do what the public wants them to do. Both in the U.S. and Europe, they have not been doing that, but instead have been abusing their authority to impose their own ideologies. Consider the 2016 "Resistance" by federal employees to the election of Donald Trump. The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss. Instead, they publicly and vocally declared their insubordination, both to the President and the public who elected him. Likewise, during the 2020 George Floyd riots, you saw public health experts allow their moral ideology to affect their expert recommendations--treating religious gatherings as somehow being different from social justice gatherings. My belief is that these things directly led to the debacle of the pandemic, when people refused to trust experts on vaccination--despite Trump telling them to take the vaccine. My dad spent his life working as a public health expert in the third world, and what happened was, while disappointing, not a surprise to him. A huge part of public health work is getting people to trust you. And you must earn that trust by putting the job first. If you go into a village in Bangladesh and people don't want to be treated by a woman doctor, you provide them a male doctor. You don't chastise them for their "sexism." My dad actually worked for a Planned Parenthood affiliate in Bangladesh. At least back in the 1980s, they were providing family planning services consistent with local beliefs, and not trying to impose western ideals on the public--something that would have swiftly destroyed trust. Most people who aren't that smart understand that and are deferential to their betters. But they also have an intuitive and accurate sense of what's an exercise of expertise, and what's a moral or political judgment. And when experts step out of their lane, they destroy the trust that's critical to doing their jobs.
    - deleted 2y ago
      [deleted]
- bartc 2y ago
  That sounds equivalent to writing an unconstitutional law and tacking on “btw, you can’t rule that this law is unconstitutional”. Which is actually possible to do by amending the US Constitution, but good luck with that.
  - mullingitover 2y ago
    Marbury itself has no basis in the constitution. Congress can gut the powers the courts have carved out any time, what I’m suggesting is that it can be done with a surgical strike rather than going nuclear.
    - rayiner 2y ago
      This is a brave comment given that we are about to get 4 more years of Trump and probably a Republican house and senate.
    - cryptonector 2y ago
      Ironically Marbury was about Congress gutting the courts. Jefferson's Congress canceled 18 federal courts, leaving 18 judges (appointed by Adams at the end of his term, and who had not yet been seated) with no court to sit in! The case was a suit to force Jefferson's Secretary of State (Madison!) to give those new judges their commission. Marbury is a fairly complex case. Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.
    - cryptonector 2y ago
      Yet everyone has accepted Marbury. No one questions it. The reason is that it makes sense in the context of the constitution.
      - mullingitover 2y ago
        This court has gone a long way to say that vibes aren’t a sufficient level of clarity anymore, so it’s only fair that this can work against the court’s allocation of power as much as it has worked for it.
- deleted 2y ago
  [deleted]
- cryptonector 2y ago
  Because the court can say that's not how you define its jurisdiction. I don't really know, to be sure.