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"??
Nowhere does the text vest power to revest any right or power it vests. Only Article V amendment can revest these elsewhere. Delegation is a subtler synonym for revestiture.
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.
Can't go with this one, sorry. Few structural questions have such power to annoy me.
US agency fees & fines are US revenue subject to the Appropriations clause.
I see revestiture in any delegation that isn't downward within your own branch. Revesting what the people chose to vest amends text without Article V. If administration is complex I can't see how complicating it with a second actor simplifies it. What are we paying the FCC for? Congress should be doing all Necessary and Proper rulemaking. Executive agencies are there to execute. If the FCC returned its "legislative arm" to the actual legislature, perhaps under a joint committee, it would be free to focus on administration, its sole lawful function as an executive agency.
(Bugbear: Executive agencies are departments and should be so named. Article II makes departments independent to the extent these agencies are. While the president can require their heads' opinions to go between them & Congress annually for appropriations, neither the hiring & firing power Congress - not the president - can vest in them, nor their vested power to opine that implies independent decisionmaking, nor their very existence in text imply presidential micromanagement. Only the bloating of presidential powers in the 20th century hobbled the departments.)
And revesting public powers in private persons or entities is revestiture's worst form, also violating Titles of Nobility. Public power is too dangerous for unaccountable private hands.
Thank you for cutting thru the clutter and helping us understand -a little at least - the workings of SCOTU. Enjoy the blessings of Thanksgiving. Ps, how's the new job going?
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.
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
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"??
Nowhere does the text vest power to revest any right or power it vests. Only Article V amendment can revest these elsewhere. Delegation is a subtler synonym for revestiture.
My comments were about the non-delegation doctrine more generally, not the en banc 5th Circuit's "bizarrely narrow" interpretation of the doctrine.
"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
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.
Can't go with this one, sorry. Few structural questions have such power to annoy me.
US agency fees & fines are US revenue subject to the Appropriations clause.
I see revestiture in any delegation that isn't downward within your own branch. Revesting what the people chose to vest amends text without Article V. If administration is complex I can't see how complicating it with a second actor simplifies it. What are we paying the FCC for? Congress should be doing all Necessary and Proper rulemaking. Executive agencies are there to execute. If the FCC returned its "legislative arm" to the actual legislature, perhaps under a joint committee, it would be free to focus on administration, its sole lawful function as an executive agency.
(Bugbear: Executive agencies are departments and should be so named. Article II makes departments independent to the extent these agencies are. While the president can require their heads' opinions to go between them & Congress annually for appropriations, neither the hiring & firing power Congress - not the president - can vest in them, nor their vested power to opine that implies independent decisionmaking, nor their very existence in text imply presidential micromanagement. Only the bloating of presidential powers in the 20th century hobbled the departments.)
And revesting public powers in private persons or entities is revestiture's worst form, also violating Titles of Nobility. Public power is too dangerous for unaccountable private hands.
Thank you for cutting thru the clutter and helping us understand -a little at least - the workings of SCOTU. Enjoy the blessings of Thanksgiving. Ps, how's the new job going?
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.
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