Yes, this.
There are lots of times when it *sounds* appropriate and reasonable to say "If Congress wants X it should legislate X, not leave it to admin agencies or the court to come up with X," but then you remember what "Congress" actually means.
I think one of the really under-appreciated things in the US is how much SCOTUS' statutory interpretation decisions are damaging--and they are--but almost exclusively because of /Congress/ being a failed institution.
To wit: A bicameral legislature prone to split control, with one house that's already the extreme outlier among constitutional democracies in being highly minoritarian and yet having fully co-equal legislative authority, even before the recent invention of a 60% threshold for *all* legislation.
Congress is also a bicameral legislature responsible for 330 million people in an era of rapid social and technological change. It is the smug, self-regarding entitlement of the American legal community that leads to gratuitous policy interventions by the Supreme Court getting blamed on Congress.
how unusual is this, though? Does Canada's Parliament or the Bundestag pass more granular regulations than Congress, or do they equally let the executive bureaucracy figure out such details?
Cf. Austria's gun statute sets forth 3 categories of firearms (prohibited; allowed w special permit; allowed) defined in general features, and then delegates a whole other category called "war material" that's left to regulatory state to define according to the "state of military technology"
interesting thought exercise what it would take to pass the Lilly Ledbetter Fair Pay Act today
in 2009, 17 Republican senators voted for cloture, including 12 who then voted nay on final passage. Wouldn't happen today
www.congress.gov/bill/111th-c...
The fact that congress can disapprove a regulation under the congressional review act and chose not to should be evidence that congress approves the regulation
Confidence and supply as an institutional check that actually empowers the institution is a legislative innovation the US desperately needs. The threat of snap elections is a hell of a thing for focusing the minds of legislators.
Gorsuch is explicit that he thinks it's the Supreme Court's role to force Congress to function adequately, but that's not the Court's role and it's foolish & hubristic of him to pretend the Court can accomplish that
bsky.app/profile/saba...
Neil Gorsuch is explicit in his judicial opinions that he believes the courts must act to keep congress “disciplined” and curtail perceived moral hazards of politics
It’s a tacit admission that he doesn’t believe in the Madisonian plan for popular governance
www.law.georgetown.edu/georgetown-l...
— the pedantic reading by SCOTUS should have this solution.
however, from the outside and perhaps with sampling bias (or cynicism), it seems that a law via compromise returns to SCOTUS for a similar take down: an insidious loop.
poor (compromise) legislation needs also a properly working SCOTUS.
