The Case That Could Destroy the Government
theatlantic.com
theatlantic.com
> 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.
Particularly noticeable with regards to this subject is https://en.m.wikipedia.org/wiki/Federalist_No._78 where Hamilton posits that the Judicial power is the most frail one: with the executive holding the military power and the congress holding the money.
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.
So, working as intended then.
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...
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.
It helps explain some of the variation I see there.
Since the end of the Warren court, the Judicial branch has been chipping away at the ground they lost, and I guess this would continue that process.
Before people come yell at me, I want to be very clear about the is/ought distinction here- we ought to have a centralized government, it isn't particularly compatible with the constitution as currently constructed.
Centralization is not necessary for governments to provide the services of a modern state. Sweden manages to provide all the functionality of a modern state, and has about the same population as North Carolina. Even then, the majority of Swedish government spending actually happens at the county and municipal level.
What the Constitution resists is turning the federal government into the level of government that’s responsible for providing all these services.
Hopefully this is a case where the ruling would be defacto recognition of the modern agency as a delegate of congress.
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).
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.
I think nothing about the US framers - not my country. I simply answered the question posed without delving into the merits of any specific position.
On the matter of stock exchanges and securities Congress did lawfully choose to regulate and bind public companies to declare honest and true infomation to the public yada yada .. that's within the scope of Congress.
The delegation is to have a seperate ideally independant group oversee that every one of hundreds of thousands of listed companies abide by regulation - just as Congress doesn't ride shotgun on every stagecoach.
It's fair to bring back to Congress any disagreements with how regulation is being managed, just as it's fair to bring back to a judge a complaint that an appointed sheriff is a lying conniving son of a bitch using a badge as an ATM (for example).
Whether older constitutional interpretations or more centralized ones do that more effectively is ultimately determined by government officials and their incentives.
We already do, within the framework set forth by the Constitution
> And if some people think the federal government needs more power then they are welcome to propose an amendment.
That's been done, too.
Seems like you're happy with things and maybe you just enjoy complaining?
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._Natura....
We aren’t talking about some ancillary provision here, or some detail where we could expect judges to fill gaps in the written text. The very first thing in the Constitution after the preamble is Article I, Section 1, which says: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” And Article I sets for a detailed process for two houses of Congress working to make law, with the signature of the President. It’s unambiguous that the Constitution only allows Congress to make laws.
It’s so clear that nobody pretends otherwise. Even proponents of the administrative state rely on the legal fiction that administrative rulemaking is an exercise in enforcing the law, not making the law. So in these cases we are simply arguing about the permissible scope of this legal fiction.
Your consequentialist arguments are irrelevant. Whether Congress has the bandwidth or expertise to take up particular issues doesn’t change the governmental structure the Constitution created. The framers went to a huge amount of trouble to provide for two houses of Congress to make a law, and then have the President sign each one. The document obviously doesn’t allow that power to be exercised by unelected bureaucrats in an executive branch agency.
It seems fair to say that you ascribe more importance to rigid fidelity to a 200-year-old document — written by people who knew far less about the world and lived in a much smaller and less-populous country — than to addressing the practical challenges of keeping a nation together, as circumstances change over the decades, in a semi-reasonable manner that kinda-sorta fits the document's text. In Christianity that's been referred to as "bibliolatry" — the idolatrous worship of the literal text of the Bible, in the manner of a golden calf.
The requirement to follow the written text follows from the very nature of a written constitution. It’s not a matter of preference or priority. If I have a car rather than a boat I’m going driving rather than sailing, and it doesn’t really matter that the bridge is out and I have to go the long way around to cross the river.
The other approach isn’t an alternative way of following the law. It’s a way of intellectually justifying breaking the law.
The reason it is hard to pass amendments today is that there is no real need to do so: the system routinely works around the plain language of the constitution, so why bother changing it?
Again, Prohibition is useful case study: in 1970s and going forward, the federal government managed to pass a bunch of laws prohibiting many drugs other than alcohol, without passing any constitutional amendment. Why was it constitutional? If it was, why the early 20th century Americans thought they need to and succeeded in passing an amendment to ban alcohol?
The answer is, obviously, because they did have to do that according to plain reading of the document, and because people at the time cared about the following law as it actually exists more than immediate political expediency. Think about it: at the time, pretty much nobody believed you can do something like this without passing amendment, otherwise the congress would just pass the relevant bill and wouldn’t bother with amending constitutions.
So, what changed in next 50 years to completely change the attitudes? The answer is that the American system of law and government has been slowly but steadily destroyed, and replaced with a related, but ultimately different legal and political regime.
What you describe is a consequence of another, more-nuanced phenomenon at work: Over time, the population of the U.S. has increased, and the political demographics have changed. But ruthless partisan gerrymandering — plus the massive overrepresentation of small, rural, and conservative states in Congress — have given a minority of the voting population an effective veto over what would be salutary constitutional amendments.
As a result, we're stuck with a system of government that in many ways is creaky, outdated, and undemocratic. People wanting to implement the aforesaid salutary changes are forced to work within the existing system — essentially, hacking it — instead of the more straightforward approach of a constitutional amendment, because entrenched interests don't WANT such changes.
Want examples? Here are a few, off the top of my head:
• Gerrymandering allows a political party with a bare majority in a state's legislatures to create congressional- and legislative districts whose borders are just bat-shit crazy. But the nakedly-partisan "advantage" of such districts is that they give the party in power the ability to carve up the state in a way that gives that party a number of legislative seats that are far, FAR out of proportion to the party's actual voting strength. That, in turn, makes it almost impossible for the other party to take control, even when the other party has a majority of voters.
• Under the "Hastert Rule" in the House of Representatives — named after disgraced and imprisoned former House speaker Dennis Hastert, and applied by every GOP speaker since: When the GOP is in the majority in the House, no bill is brought to the floor for a vote, even if it would have the votes to pass, unless a majority of House Republicans support the bill.
So: No constitutional amendment reflecting any kind of Democratic policy preference would ever get past a GOP-controlled House. And thanks to gerrymandering, even in a Dem-controlled House, no Dem-supported amendment would likely ever get the constitutionally-required 2/3 vote in the House.
Incidentally, discharge petitions don't work to force a floor vote in the House: Any House member who signs a discharge petition is vulnerable to being punished by party leadership (because the names of signers are known). Moreover, House members in "safe" districts — which is most of the districts — are afraid of being "primaried" by the radical nut-jobs in "the base" of their party, who [again due to gerrymandering] wield undue influence in the primary election process. We saw several examples of that in the 2020 and 2022 elections.
• The Senate's filibuster rule requires 60 votes to move any kind of controversial bill — even though (as is well known) the small states already have massively more power per citizen in the Senate than do the large states. Example: Wyoming, population 583,000 and change, has the same number of votes in the Senate as California, population 39 million, or Texas, population 30 million.
So: Senators representing a decided minority of U.S. citizens can blockade a constitutional amendment.
• Still another gerrymandering effect: Constitutional amendments by one party are unlikely to be approved by the constitutionally-required number of state legislatures.
I could go on.
I agree, but in my view the relevant demographic change was mass immigration from continental European countries outside the Anglo legal tradition, which resulted in the election of a President that threatened the Supreme Court until it relented and effectively rewrote the Constitution.
> gerrymandering, plus the massive overrepresentation of small, rural states, have given a minority of the voting population an effective veto over what would be salutary constitutional amendments.
Both are complete red herrings. Neither party has won more than 55% of the House popular vote in my lifetime. Even if our system was exactly like Germany's--proportional voting in the lower house, 2/3 majority required to amend the Basic Law)--no party would have been able to pass a partisan amendment in even the House alone.
It's theoretically possible that Senators representing a minority of voters could block an amendment, but it doesn't actually split that way in practice. Biden carried 25.5 states (excluding DC) which exactly reflects his 51% of the popular vote. Obama in 2008 carried 28.5 states (57%) with 53% of the popular vote.
That's useful info. (I'm assuming accuracy.)
Regardless, it has nothing to do with amendments. It only makes a difference in very close elections (0.5% for Bush, 2.0% for Trump). In any case it makes a difference you’re nowhere close to the mandate for amending the constitution anyway.
And that's my point. We can think of government as a complex machine controlled by software that's designed to limit what the machine's operators can do:
• The prerequisites for updating the software are onerous.
• The updating process is jealously "guarded" by any number of special interests who wield outsized influence and, by and large, prefer things the way they are, thank you.
So as a practical matter, it's essentially impossible to update the machine's software — even when updates would be useful to accommodate changes in circumstances.
No competent engineer would regard that as acceptable. (It's a bit reminiscent of the liberum veto in the Sejm [parliament] of the Polish-Lithuanian Commonwealth [0], albeit not quite as bad.) Small wonder that lawyers have responded by hacking the system, using, e.g., the 14th Amendment and the All-Writs Act.
You're referring, of course, to the "conservative" Supreme Court majority that, in the mid-1930s, kept invalidating the emergency legislation enacted by FDR and a Democratic Congress to cope with the global disaster of the Great Depression, and to FDR's (ultimately-abortive) effort to pack the Court in response.
Dealing effectively with the Great Depression was evidently less important to the SCOTUS conservatives than was fidelity to a cramped interpretation of the Constitution and of the role of the federal government. That interpretation had hamstrung the Hoover government from dealing with the crisis; state governments weren't getting the job done either (and couldn't).
In 1930-32, Hoover and the GOP seemed to be fixated on conforming to that "conservative" view of the role of government. It got them tossed out of office on their asses and losing political power for decades.
In contrast, FDR and the Democrats took an expansive view of the role of government. They gave priority to trying to fix the problems affecting so many. Voters rewarded that thinking by keeping the Dems in power for decades.
One can conjecture that FDR's landslide victory in 1936 was because many people know comparatively little about "the Constitution." To many, "the law" is something for others to concern themselves with; what matters to them is whether the government is getting results, helping to mitigate people's problems while not interfering unduly in their lives. FDR recognized that; Hoover, the GOP, and the conservative SCOTUS majority seemed not to.
(In a similar vein: There's a piece in today's NY Times about how Hamas is gaining support in the West Bank because of releases of Palestinians held prisoner by the Israelis. [0] As my late dad used to say: If your rain dance doesn't produce rain, people aren't likely to care that you faithfully followed the prescribed dance steps — what they care about is results.)
Short-sighted thinking? Maybe. But it's a brute fact: Many, many people view the world in that way; they get to vote — or to take up arms ....
Doubtless you know the saying about the Supreme Court's collective change of heart in the late 1930s: "A switch in time saved Nine." That switch conceivably saved the country from revolution — possibly even of the kind that led to catastrophe for Germany in 1933, in Italy in 1922, and Russia in 1917.
[0] https://www.nytimes.com/2023/11/29/world/middleeast/west-ban...
The framers thought very hard about, explicitly codified, and had to justify even that explicit and special-purpose deviation from the separation of powers.
> Congress doesn't have the bandwidth to, say, decide fish quotas
you're absolutely right, that would be overstepping, which is why this case is being brought. To argue they're overstepping.
You agree with the case then.
For a more well-balanced account: 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.
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.
I hadn't expected the visual metaphor to be so literally applicable!
https://www.aoc.gov/explore-capitol-campus/buildings-grounds...