Friday's major new cert. grant raises the question whether the justices are poised to reinvigorate the non-delegation doctrine, or whether they're just going to slap the Fifth Circuit down again.
In the Dobbs decision overruling Roe v. Wade, Justice Alito wrote, "The Constitution makes no reference to abortion". Well, the Constitution does not mention any doctrine of non-delegation. Nor does it mention a "major questions" doctrine, nor does it say anything about "history and traditions" as being relevant. It is frustrating to watch when legal constructs are invented from whole cloth with the obvious purpose of achieving a desired ideological outcome.
I still view Justice Scalia as the all-time champion...instead of using a phony positive construct, he simply read the text of the Second Amendment backwards and vanished the preamble about 'a well regulated Militia' to reach his preferred outcome of an individual right to bear arms. And Alexander Hamilton thought the judiciary to be the "least dangerous branch of government"??
I find it surprising how the conservatives struggle to get to 4 votes for cert sometimes. Non-delegation is a good example and likewise Hamm v Smith last month. Kavanaugh's even said he thinks the court should take more cases.
Steve, I have a true history story about the Schechter Poultry case. While a student at the University of Illinois in 1968, I took a class on constitutional history from Professor Harold Hyman. One day, Professor Hyman discussed the Schechter Poultry case. He went through the holdings and when he recited the Court's conclusion that Schechter Poultry, a Brooklyn poultry seller, was not involved in interstate commerce, Professor Hyman then shouted: I protest, I protest! He told the class that when he was a young man in New York, he worked for the Schechter Poultry Corp. Among his duties were cleaning chicken cages. But nearly every day, as part of his job was to take four chicken cages and lash them together and then travel to New Jersey, Professor Hyman exclaimed:" I was involved in interstate commerce", but none of the lawyers asked me what I did. So, as in many cases then and now, the actual facts of a case are often different from how the Justices report them.
As a general rule the correct basis for predicting what this court might do is the following. There are three criteria (1) whatever the crazy right and Christian nationalists want (2!) whatever takes away the most rights from some part of the American population (3) whatever does the most to destroy American democracy fastest. Let’s not enlarge the court, lets’get’rid’of’it
"But I think I can say without too much offense that the stakes of the horseracing case are somewhat lower than the stakes of the USF case."
I generally agree, but the Horseracing Integrity and Safety Authority is expressly modeled after FINRA, which I think raises the stakes significantly higher. Senator McConnell argues these similarities in his amicus brief: https://www.supremecourt.gov/DocketPDF/24/24A287/326779/20240924155913428_Brief%20of%20Amici%20Members%20of%20Congress%204883-8394-1863%20v.3.pdf
In the Dobbs decision overruling Roe v. Wade, Justice Alito wrote, "The Constitution makes no reference to abortion". Well, the Constitution does not mention any doctrine of non-delegation. Nor does it mention a "major questions" doctrine, nor does it say anything about "history and traditions" as being relevant. It is frustrating to watch when legal constructs are invented from whole cloth with the obvious purpose of achieving a desired ideological outcome.
I still view Justice Scalia as the all-time champion...instead of using a phony positive construct, he simply read the text of the Second Amendment backwards and vanished the preamble about 'a well regulated Militia' to reach his preferred outcome of an individual right to bear arms. And Alexander Hamilton thought the judiciary to be the "least dangerous branch of government"??
I find it surprising how the conservatives struggle to get to 4 votes for cert sometimes. Non-delegation is a good example and likewise Hamm v Smith last month. Kavanaugh's even said he thinks the court should take more cases.
Steve, I have a true history story about the Schechter Poultry case. While a student at the University of Illinois in 1968, I took a class on constitutional history from Professor Harold Hyman. One day, Professor Hyman discussed the Schechter Poultry case. He went through the holdings and when he recited the Court's conclusion that Schechter Poultry, a Brooklyn poultry seller, was not involved in interstate commerce, Professor Hyman then shouted: I protest, I protest! He told the class that when he was a young man in New York, he worked for the Schechter Poultry Corp. Among his duties were cleaning chicken cages. But nearly every day, as part of his job was to take four chicken cages and lash them together and then travel to New Jersey, Professor Hyman exclaimed:" I was involved in interstate commerce", but none of the lawyers asked me what I did. So, as in many cases then and now, the actual facts of a case are often different from how the Justices report them.
As a general rule the correct basis for predicting what this court might do is the following. There are three criteria (1) whatever the crazy right and Christian nationalists want (2!) whatever takes away the most rights from some part of the American population (3) whatever does the most to destroy American democracy fastest. Let’s not enlarge the court, lets’get’rid’of’it