The best thing Pete Buttigieg ever said in a debate was that our real problem is fifty years of Congress slowly ceding authority to executive orders and the judiciary so they don't actually have to vote on most tough issues, from ending wars to codifying rights (or taking them away, I guess)
the old checks and balances diagram but each arrow between branches has been replaced by a crosseyed daffy duck with his arms in knots holding a sign reading “makes this one get shittier”
Lotta column A; lotta column B. At some point what could Congress ever do with "you do not have any power to [ delegate this to the agency / regulate guns / proscribe criminal corruption among state & local officials / form a comprehensive health insurance scheme with the states ] etc. ?
This morning's EMTALA dismissal contained a foreboding note from ACB that she considers it an open question whether Congress even has the authority to legislate on emergency medicine requirements
bsky.app/profile/saba...
Barrett intimating that she thinks it's an open question that (1) Congress can't preempt state or local law under the Spending Clause; and (2) EMTALA is rooted in the Spending Clause is Very Bad
Right, the ultrarealist view is that SCOTUS decides the result and then finds the reasoning, so maybe right now it's convenient to say "Congress should clarify" but if they had a hostile Congress they would instead say "unconstitutional"
There's definitely two levels to the game. If Congress passes laws, SCOTUS can pull the "Constitution" card to win that fight.
But, if they do that with any regularity or mendacity and it becomes an inter-branch power struggle, Congress will win that fight handily with the tools at its disposal.
@pwnallthethings.bsky.social has argued the root (but not sole source) of all this is that the US constitution is much too difficult to amend, and a more flexible constitution would keep political questions in the political branches
I think the ultra-cynic view explains a lot of the 5th Cir but don't go quite that far with SCOTUS yet; it's idiosyncratic, the justices aren't monolithic, and they know a lot of eyes are on them and even the most cynical court would need to maintain legitimacy among the public & other branches
Having said that, however good or bad faith their motives are the USA is now stuck for all time (until the judiciary and/or constitution is upended) with "federal agencies have no quasi-judicial legal enforcement power of their own, except over narrowly & arbitrarily defined (by us) "public" rights"
I think SCOTUS's attempts at legitimacy maintenance are compatible with and even bolster the ultra-realist argument.
Like, the ultra-realist argument is simply they pick the result based on extra-legal factors. For the 5th, the only factor is "we're pure evil". For SCOTUS, it's a blend.
Like, the fact that SCOTUS backpedaled from Bruen in Rahimi is easily explainable with an ultra-realist framework. It is very hard to explain how those two decisions are possible and compatible under basically any other theory of legalism.
A sufficiently motivated Congress could break the judiciary in half. They could strip jurisdiction at will, they could impeach any justice, they could pack SCOTUS, they could dissolve an out of control circuit. They could sell building and turn it into an Applebees if they wanted.
IMO it's really disfunction of the Senate, and the mistaken conversion of historical traditions into permanent veto points. The House is a mess but it's a viable mess.
I imagine a greater diversity of views and parties that would encourage coalitions arranged around specific policies/interests, but that could be naive
If traditions are solutions to problems we no longer remember, senate traditions are problems with obvious solutions we can't implement because we no longer remember what a functioning legislature looks like
Partially because if the legislature was less dysfunctional, you could rework the judiciary. The judiciary being less corrupt or winning a Dem appointed majority on the Supreme Court bench would not help with the legislature much at all.
the judiciary is a problem precisely because we can never trust the legislature to do the right thing. Alito called this out himself, and, frustratingly, wasn't entirely wrong
I probably agree. But it's tricky to separate them in certain respects. For example, the Court's interest in nondelegattion and invention of the major questions doctrine are likely predicated on a dysfunctional Congress. But, those doctrines also encourage gridlock.
been thinking about this *a lot* wrt bump stocks. It's wild that the law passed by congress was ruled just not quite clear enough and we (not wrongly) recognize it as game over.
I'd argue that Congress has been somewhat dysfunctional since its inception and the republic has muddled through. The current dynamic with SCOTUS is new and it's headed to a very bad place unless Thomas and/or Alito succumb to father time sooner rather than later.
right? like you could pass a law to undo what they did with bump stocks, but they won’t - an example of some dramatic changes they’ve made which cannot, in effect, be undone.
Yes, it’s just a much harder problem to solve so people don’t try to solve it. Sure, the filibuster can be killed by simple majority, but malapportionment generally is imo the real root of the dysfunction and that is really hard to fix.
