4 ms·

With the exception of citizens vs united, I think most of the decisions of the "conservative" court have been along the lines that congress should do its job. I

With the exception of citizens vs united, I think most of the decisions of the "conservative" court have been along the lines that congress should do its job. I don't see how all this turns out well for normal people, but if it does, I think congress will have to be much stronger than it was within the federal government, and the federal government will have to be much weaker than it was. The structural problems are that the federal government doesn't want to be weaker, and congress people don't want to be stronger, because they have no term limits, so they don't want the power to rock the boat.

ceejayoz 3mo ago
> I think most of the decisions of the "conservative" court have been along the lines that congress should do its job. They have repeatedly reduced Congressional powers, including today, where they basically said Congress can't setup genuinely independent agencies (in Slaughter). Or when they kneecapped the VRA. Some of them likely subscribe privately to https://en.wikipedia.org/wiki/Unitary_executive_theory https://en.wikipedia.org/wiki/Unitary_executive_theory.
- mothballed 3mo ago
  Slaughter determined that agencies congress had ceded to the executive branch had control of the executive. It doesn't stop congress from directly exercising that power instead. It just says you can't play the fuck-fuck game where you pretend to create an agency in the executive branch but actually violate the constitution by trying to create a new branch.
  - ceejayoz 3mo ago
    > Slaughter determined that agencies congress had ceded to the executive branch had control of the executive. The law Congress passed set rules requiring cause for a firing of an FTC commissioner. It appears they now lack that power that they've had for almost a century. Or Alito's new "history and tradition" test, invented out of whole cloth to take out abortion but now being applied to all sorts of things Congress does.
    - mothballed 3mo ago
      Statutes don't supersede the constitution and passing one doesn't create that power.
      - ceejayoz 3mo ago
        > Statutes don't supersede the constitution… "We can make rules the President has to follow" does not supersede the Constitution.
        mothballed 3mo ago
        In this case, it did, that's why SCOTUS ruled against it.
        ceejayoz 3mo ago
        SCOTUS does not enjoy papal infallibility. They fuck up. (Or act maliciously, as when Alito invented the new "history and tradition" test.)
        mothballed 3mo ago
        Congress fucks up as well. There's as pretty strong argument that "independence" from the executive power vested in the POTUS and legislative branch puts that power in a place not authorized anywhere in the constitution, and for good reason, as the design of the constitution intends elected office to have direct control over powers of congress and the executive.
        ceejayoz 3mo ago
        Yeah, that's why we have the veto power; as a check on their power. SCOTUS has now given the executive retroactive uncheckable vetos. Yikes. "Those rules we agreed to, signed into law, and followed for the last 90 years? HAHA PSYCHE SUCKERS!" Reminder: On the SAME DAY, the SAME JUSTICE issued an opinion that the President can't fire a Federal Reserve member, in Cook, saying it was "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference". You're asserting consistency that simply does not exist; the Court is starting with the desired ruling and working backwards from there.
- dmitrygr 3mo ago
  > can't setup genuinely independent agencies The US constitution lays out three AND ONLY three branches of government. The congress cannot create a fourth without an amendment. If they create an agency in the executive branch, by definition it reports to the head of the executive.
  - ceejayoz 3mo ago
    > The congress cannot create a fourth without an amendment. Sure. So explain the results of Trump v. Cook, which involve exactly that. The same justice, on the same day, issued one opinion that says Congress can't put limits on firing FTC chairs, and another that Congress can put limits on firing Fed board members.
    - dmitrygr 3mo ago
      Did you read the opinion? SCOTUS only said a process was broken by a step being missed. Trump can still fire Cook, just has to let Cook have a hearing about it. Nowhere that I see did they say Trump must at all consider what Cook says at said hearing or be bound by it in any way - only that she must be able to get a hearing. This does not seem to contradict his authority to fire her. Just like your job's HR will gladly give you a hearing about terminating you, even if their minds are all made up and nothing you say will change a thing.
      - ceejayoz 3mo ago
        Yes, I read both opinions, and am left wondering why "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference" applied to one and not the other.
        mothballed 3mo ago
        SCOTUS ruled if something is in the executive branch, POTUS can fire the commissioner. Congress and everyone else explicitly is saying the FTC is in the executive branch, which puts it in a completely different question that regarding the federal reserve. The ruling in Slaughter was not that president can fire commissioners no matter what branch they are in. It was never established in Trump v Cook that the federal reserve lies in the executive branch. Your attempt here to falsely portray an inconsistency that doesn't exist. It's a different question as to whether the federal reserve is in the executive branch. You'll have to show the federal reserve is in the executive branch if you want the same ruling to apply or claim this inconsistency.
ocdtrekkie 3mo ago
I agree in general, but this is also why I say allowing authoritarianism through technicality. They know by punting to Congress, a body that is completely paralyzed, what the practical outcome of that ruling is.
- galangalalgol 3mo ago
  I agree that motive is likely in at least one justice. But at the same time, if they really wanted to get back to original principles, they would have to take a wrecking ball to virtually every agency without being able to provide any substitute for the load bearing bits. I think these artificially narrow rulings are what some of the justices think is the middle ground to work in that direction without bringing the roof down. Thomas in particular has advocated for simply taking out the walls and trusting congress and the states will somehow fix everything and it isn't their problem. I think his opinions have occasionally been horribly flawed, but I see his vision and get what he is hoping for. I suspect something like that is the only way a representative democracy could recur in the US. Right now, states with strong geographic bents towards authoritarianism can use power of the federal executive to strengthen their position. If the federal executive had no agencies and was powerless the way Thomas suggests, those states wouldn't have much impact. But that entails acknowledging the entirety of the federal bureaucracy is unconstitutional and creating all sorts of power vacuums. Who knows how that would turn out? I increasingly think it couldn't be worse than the likely end state of a federal autocracy if we don't.

ceejayoz 3mo ago

> I think most of the decisions of the "conservative" court have been along the lines that congress should do its job. They have repeatedly reduced Congressional powers, including today, where they basically said Congress can't setup genuinely independent agencies (in Slaughter). Or when they kneecapped the VRA. Some of them likely subscribe privately to https://en.wikipedia.org/wiki/Unitary_executive_theory https://en.wikipedia.org/wiki/Unitary_executive_theory.

mothballed 3mo ago
Slaughter determined that agencies congress had ceded to the executive branch had control of the executive. It doesn't stop congress from directly exercising that power instead. It just says you can't play the fuck-fuck game where you pretend to create an agency in the executive branch but actually violate the constitution by trying to create a new branch.
- ceejayoz 3mo ago
  > Slaughter determined that agencies congress had ceded to the executive branch had control of the executive. The law Congress passed set rules requiring cause for a firing of an FTC commissioner. It appears they now lack that power that they've had for almost a century. Or Alito's new "history and tradition" test, invented out of whole cloth to take out abortion but now being applied to all sorts of things Congress does.
  - mothballed 3mo ago
    Statutes don't supersede the constitution and passing one doesn't create that power.
    - ceejayoz 3mo ago
      > Statutes don't supersede the constitution… "We can make rules the President has to follow" does not supersede the Constitution.
      - mothballed 3mo ago
        In this case, it did, that's why SCOTUS ruled against it.
        ceejayoz 3mo ago
        SCOTUS does not enjoy papal infallibility. They fuck up. (Or act maliciously, as when Alito invented the new "history and tradition" test.)
        mothballed 3mo ago
        Congress fucks up as well. There's as pretty strong argument that "independence" from the executive power vested in the POTUS and legislative branch puts that power in a place not authorized anywhere in the constitution, and for good reason, as the design of the constitution intends elected office to have direct control over powers of congress and the executive.
        ceejayoz 3mo ago
        Yeah, that's why we have the veto power; as a check on their power. SCOTUS has now given the executive retroactive uncheckable vetos. Yikes. "Those rules we agreed to, signed into law, and followed for the last 90 years? HAHA PSYCHE SUCKERS!" Reminder: On the SAME DAY, the SAME JUSTICE issued an opinion that the President can't fire a Federal Reserve member, in Cook, saying it was "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference". You're asserting consistency that simply does not exist; the Court is starting with the desired ruling and working backwards from there.
dmitrygr 3mo ago
> can't setup genuinely independent agencies The US constitution lays out three AND ONLY three branches of government. The congress cannot create a fourth without an amendment. If they create an agency in the executive branch, by definition it reports to the head of the executive.
- ceejayoz 3mo ago
  > The congress cannot create a fourth without an amendment. Sure. So explain the results of Trump v. Cook, which involve exactly that. The same justice, on the same day, issued one opinion that says Congress can't put limits on firing FTC chairs, and another that Congress can put limits on firing Fed board members.
  - dmitrygr 3mo ago
    Did you read the opinion? SCOTUS only said a process was broken by a step being missed. Trump can still fire Cook, just has to let Cook have a hearing about it. Nowhere that I see did they say Trump must at all consider what Cook says at said hearing or be bound by it in any way - only that she must be able to get a hearing. This does not seem to contradict his authority to fire her. Just like your job's HR will gladly give you a hearing about terminating you, even if their minds are all made up and nothing you say will change a thing.
    - ceejayoz 3mo ago
      Yes, I read both opinions, and am left wondering why "out of step with the statute Congress enacted and our nation’s tradition of central banking protected from political interference" applied to one and not the other.
      - mothballed 3mo ago
        SCOTUS ruled if something is in the executive branch, POTUS can fire the commissioner. Congress and everyone else explicitly is saying the FTC is in the executive branch, which puts it in a completely different question that regarding the federal reserve. The ruling in Slaughter was not that president can fire commissioners no matter what branch they are in. It was never established in Trump v Cook that the federal reserve lies in the executive branch. Your attempt here to falsely portray an inconsistency that doesn't exist. It's a different question as to whether the federal reserve is in the executive branch. You'll have to show the federal reserve is in the executive branch if you want the same ruling to apply or claim this inconsistency.

ocdtrekkie 3mo ago

I agree in general, but this is also why I say allowing authoritarianism through technicality. They know by punting to Congress, a body that is completely paralyzed, what the practical outcome of that ruling is.

galangalalgol 3mo ago
I agree that motive is likely in at least one justice. But at the same time, if they really wanted to get back to original principles, they would have to take a wrecking ball to virtually every agency without being able to provide any substitute for the load bearing bits. I think these artificially narrow rulings are what some of the justices think is the middle ground to work in that direction without bringing the roof down. Thomas in particular has advocated for simply taking out the walls and trusting congress and the states will somehow fix everything and it isn't their problem. I think his opinions have occasionally been horribly flawed, but I see his vision and get what he is hoping for. I suspect something like that is the only way a representative democracy could recur in the US. Right now, states with strong geographic bents towards authoritarianism can use power of the federal executive to strengthen their position. If the federal executive had no agencies and was powerless the way Thomas suggests, those states wouldn't have much impact. But that entails acknowledging the entirety of the federal bureaucracy is unconstitutional and creating all sorts of power vacuums. Who knows how that would turn out? I increasingly think it couldn't be worse than the likely end state of a federal autocracy if we don't.