(C) Common Dreams
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The Supreme Court Conservatives’ Favorite New Weapon for Kneecapping the Administrative State [1]

['Matt Ford', 'Simon Lazarus', 'Michael Tomasky', 'Grace Segers', 'Edith Olmsted', 'Sal Gentile']

Date: 2023-03-13

In practical terms, the major questions doctrine allows unelected judges to veto federal regulations based on laws written by a democratically elected Congress and drafted by federal agencies that answer to democratically elected presidents.

Whether Gorsuch appreciated the irony of that statement is unclear. In practical terms, the major questions doctrine allows unelected judges to veto federal regulations based on laws written by a democratically elected Congress and drafted by federal agencies that answer to democratically elected presidents. Congress, not keen to constantly decide which pharmaceutical drugs should be sold or which air and water pollutants should be banned on a case-by-case basis, has set the bounds by which federal agencies can make those decisions. The “administrative state” is not a republic usurped; it is a republic in action.

Just look at how amorphous the doctrine itself is in the court’s own words: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” What does it mean to “speak clearly”? Where does the court draw the line between a broad grant of authority by Congress and a usurpation of power by a rogue federal agency? When does a federal regulation not address a question of “vast economic and political significance”? What is vast? What is significant? Is there a dollar amount? A threshold market capitalization for an industry? Or does the court, as it once did, simply know it when it sees it?

It’s hard to avoid the conclusion that the major questions doctrine is less about law and more about power. Its existence flows from two basic facts about American governance in 2023. One is that Congress, both as a legislative body and as an independent branch of government, is barely functional at the moment. It struggles to pass significant legislation even when one party has a democratic mandate to do so. It has not passed a budget under normal procedures since 1997. It failed to keep the federal government funded and open three times in the last 10 years. It’s uncertain whether lawmakers will be able to raise the debt ceiling later this year.

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[1] Url: https://newrepublic.com/article/171093/supreme-court-major-questions-doctrine-administrative-state

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