SCOTUS Term 25-26

[Aardvark86]

@Aardvark86 what are your thoughts on the major questions doctrine? Seemed to get a lot of play with the justices.

I sorta think Gorsuch's question is the most likely way they'll go -- ie, they'll consider it as a rule of construction here, rather than a driver of the decision itself. In other words, they'll construe "regulate" to exclude tariffs, because to do otherwise would raise both the major questions doctrine (ie, was that delegation actually clear enough to be good enough) and the nondelegation doctrine (ie, can they even delegate a taxing power at all), and they'd rather avoid those questions. In addition, it would be even more complicated because some members of the court may question whether MQD even exists in the context of a power that "might" be authorized as an executive/article ii power, like foreign affairs.

 

[Aardvark86]

he calls emergency, because our system give him so much power in an emergency. But how do you, generic you, ascertain that there was no emergency when you might not have the same perspective or information as the president.? For example, is China's position on rare earth materials limits constitute an emergency? For you and I likely no. But from a national security perspective, absolutely yes.

I believe, that somewhere along the way Congress has ceded too much power to the executive. Maybe it's because of the speed of "action" in the current world, or because it's just easier to be in Congress if you don't have to make decisions. Any way, we've gone way too far in the direction of executive orders and/or emergencies.

exactly. it might even be one thing for a court to revoke that or 'veto' the declaration (so to speak), but for scotus to do it, is another thing entirely from a precedential perspective.

 

[DCandtheUTBand]

he calls emergency, because our system give him so much power in an emergency. But how do you, generic you, ascertain that there was no emergency when you might not have the same perspective or information as the president.? For example, is China's position on rare earth materials limits constitute an emergency? For you and I likely no. But from a national security perspective, absolutely yes.

I believe, that somewhere along the way Congress has ceded too much power to the executive. Maybe it's because of the speed of "action" in the current world, or because it's just easier to be in Congress if you don't have to make decisions. Any way, we've gone way too far in the direction of executive orders and/or emergencies.

Democrat congresses made this bed and now they lay in it. Zer0care is 3k pages full of the "secretary shall determine." The secretary reports to POTUS but they fully expected both to defer to the unelected technocrats that have permanent jobs in the agency.

Well SCOTUS under threat from FDR to pack the court finally allowed him to create the modern and unconstitutional welfare/administrative state that progressives had desired since before Wilson. A SCOTUS denying Trump the powers ceded to him over the last 100 years by a purposefully abrogate congress would be Irony!

 

[UrHuckleberry]

I sorta think Gorsuch's question is the most likely way they'll go -- ie, they'll consider it as a rule of construction here, rather than a driver of the decision itself. In other words, they'll construe "regulate" to exclude tariffs, because to do otherwise would raise both the major questions doctrine (ie, was that delegation actually clear enough to be good enough) and the nondelegation doctrine (ie, can they even delegate a taxing power at all), and they'd rather avoid those questions. In addition, it would be even more complicated because some members of the court may question whether MQD even exists in the context of a power that "might" be authorized as an executive/article ii power, like foreign affairs.

I understood some of that ha. Really appreciate your thoughts.

 

[LafayetteBear]

he calls emergency, because our system give him so much power in an emergency. But how do you, generic you, ascertain that there was no emergency when you might not have the same perspective or information as the president.? For example, is China's position on rare earth materials limits constitute an emergency? For you and I likely no. But from a national security perspective, absolutely yes.

I believe, that somewhere along the way Congress has ceded too much power to the executive. Maybe it's because of the speed of "action" in the current world, or because it's just easier to be in Congress if you don't have to make decisions. Any way, we've gone way too far in the direction of executive orders and/or emergencies.

It is impossible to craft a workable advance definition of what might constitute an "emergency" for purposes of these various statutes. There are just too many different situations and contexts to consider.

Prior to Trump taking office in January 17, we did not much need to worry about that, because presidents were not authoritarian, nihilist or sociopathic, and generally acted with good will and in the public interest. Trump has made it clear that we can no longer assume that will be the case.

I think what Congress should do is to take the decision about what constitutes an "emergency" out of the sole hands of the president. Perhaps require a majority affirmative vote of the president and the top Republican and Democrat in both the House and the Senate. That's five (5) people, four of whom are members of the legislative branch. And it involves people on both sides of the political aisle in the decision. Look at what is happening right now. Trump won't even provide the most senior Democrats with intelligence and security briefings. That is crazy.

 

[fatpiggy]

This is so refreshing. Reality actually means something.

 

[baltimorened]

It is impossible to craft a workable advance definition of what might constitute an "emergency" for purposes of these various statutes. There are just too many different situations and contexts to consider.

Prior to Trump taking office in January 17, we did not much need to worry about that, because presidents were not authoritarian, nihilist or sociopathic, and generally acted with good will and in the public interest. Trump has made it clear that we can no longer assume that will be the case.

I think what Congress should do is to take the decision about what constitutes an "emergency" out of the sole hands of the president. Perhaps require a majority affirmative vote of the president and the top Republican and Democrat in both the House and the Senate. That's five (5) people, four of whom are members of the legislative branch. And it involves people on both sides of the political aisle in the decision. Look at what is happening right now. Trump won't even provide the most senior Democrats with intelligence and security briefings. That is crazy.

first of all, I agree with your first paragraph.

On your last, you wouldn't feel this way if there were a democrat president, IMO. Life moves too fast right now to dick around with asking Congress to get involved in deciding what constitutes an emergency. Our Congress can't even agree on a budget when they have a year to complete it.

All Presidents are authoritarian to a degree. We have executive orders, which just by the designation "order" intimates authoritarianism. Trump has just taken it to a new level and Congress has either been unwilling or afraid to take back it's power. Just look at the vote yesterday on shooting these "drug" boats. How is the world can that be legal? Unless we have different intelligence operatives than those that told us about the weapons of mass destruction in Iraq, we don't know for sure that these boats are drug runners. Yet Senate can't vote to stop the shooting. If we depended on them to agree on what's an emergency, we have an enemy invader all the way to Chicago before deciding it was, or wasn't. And yes, we'd have senators saying it wasn't.

Somewhat related to my posts. I just read where the governor elect of NJ, has said that on day 1 of taking office she would declare an emergency over housing in the state. Now is housing availability and pricing an emergency? To her it is, to others maybe not. Is she going to be declared authoritarian or a dictator

 

[Aardvark86]

This is so refreshing. Reality actually means something.

To be clear, again a stay and not a decision on the merits.

btw, I liked kjb’s stay in snap funding last night in that it is time limited.

 

[Aardvark86]

A couple of interesting orders this morning, boys and girls.

First, in light of the first circuit's denial of the stay in the snap case, KJB issued an order requiring the administration to state whether they intended to seek a scotus stay, and setting any supp briefing for 4pm today and 0800 tomorrow for the states' response. The feds indicated they will be seeking a stay, but it'll be really interesting to see what they request. It might well be something limited given the political movement within the senate on the appropriations front.

Second, despite fearmongering from some corners, the court declined the cert petition inviting them to revisit gay marriage and Obergfell. Lots of good reasons for that, but I will note that as unsympathetic a plaintiff as Kim Davis was in the case, she does end up caught between a weird rock and hard place given the way the case arose -- a judgment of personal liability against her for failure to take an official action.

Third, the court did take up a really important election law case -- basically, whether federal law requires that ballots actually be received by (not just mailed by) election day to be counted. Personally, I kinda hate mail voting generally in that the ritual of actually giving enough of a **** to get your *** to the pollling place underscores the importance of the privilege you are exercising. But I have a hard time seeing a receipt day as federally/constitutionally mandated on the legal front, and I don't buy the paranoid argument that allowing a few extra days for mail delays somehow undercuts confidence in voting integrity.

And finally, as a bonus, a Gorsuch dissent from a denial of cert in an Indian law case - always a wonderful read.

 

[fatpiggy]

A couple of interesting orders this morning, boys and girls.

First, in light of the first circuit's denial of the stay in the snap case, KJB issued an order requiring the administration to state whether they intended to seek a scotus stay, and setting any supp briefing for 4pm today and 0800 tomorrow for the states' response. The feds indicated they will be seeking a stay, but it'll be really interesting to see what they request. It might well be something limited given the political movement within the senate on the appropriations front.

Second, despite fearmongering from some corners, the court declined the cert petition inviting them to revisit gay marriage and Obergfell. Lots of good reasons for that, but I will note that as unsympathetic a plaintiff as Kim Davis was in the case, she does end up caught between a weird rock and hard place given the way the case arose -- a judgment of personal liability against her for failure to take an official action.

Third, the court did take up a really important election law case -- basically, whether federal law requires that ballots actually be received by (not just mailed by) election day to be counted. Personally, I kinda hate mail voting generally in that the ritual of actually giving enough of a **** to get your *** to the pollling place underscores the importance of the privilege you are exercising. But I have a hard time seeing a receipt day as federally/constitutionally mandated on the legal front, and I don't buy the paranoid argument that allowing a few extra days for mail delays somehow undercuts confidence in voting integrity.

I'll have to disagree with you on the last one. I do think allowing votes received after the election day undermines the confidence of voting integrity. Sorry, too many irregularities in the past have caused many to lose trust in the system.

Election day means just that. I don't think the law says election day(s) from what i can find.

Congressional elections: ""The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter."

Presidential elections: ""The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in each fourth year succeeding the election of a President and Vice President of the United States."


In my humble opinion - the texts in these statutes imply very strongly an election day. How can the electors for president and vice president be appointed if votes are still being received?

I think the SCOTUS will rule that votes must be counted on election day.

 

[Aardvark86]

I'll have to disagree with you on the last one. I do think allowing votes received after the election day undermines the confidence of voting integrity. Sorry, too many irregularities in the past have caused many to lose trust in the system.

Election day means just that. I don't think the law says election day(s) from what i can find.

Congressional elections: ""The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter."

Presidential elections: ""The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in each fourth year succeeding the election of a President and Vice President of the United States."


In my humble opinion - the texts in these statutes imply very strongly an election day. How can the electors for president and vice president be appointed if votes are still being received?

I think the SCOTUS will rule that votes must be counted on election day.

Certainly a fair enough argument, and if it weren't there wouldn't be room to take the case. But I'm not sure what the magical touchstone is that has to occur on the "day". Ordinarily, it would seem to me that the answer is the "casting" of the votes, and if there is reasonable (ie, but not absolute) assurance that has occurred (e.g., by a postmark date), I'm not sure why it would matter when they are counted. Indeed, to push that point to its irrational extreme, might it otherwise suggest that the counting has to be one by midnight?

As to irregularities and confidence, that is indeed one we'll just have to disagree on. We've long had procedures for, and rules governing mail-in ballots, with few concerns. From where I sit, 'irregularities' only really seemed to become an issue - real or imagined - in 2020. And of course, that was probably a universe of one given that we were playing by "Covid Rules".

Don't get me wrong - again, from a "policy" and "civic virtue" perspective, I am all-in on Election "Day." But if you really felt compelled to do "something" to buttress the confidence concept, for my money, the bigger bang for the buck is not on mail ballots arriving after the day, it is in gutting the increasing number of processes for "early voting." IMO, those processes just incent "vote harvesting" through industrial means that would have made Cyrus McCormick proud. That includes the hundreds of spam texts and robo-calls I received prior to the recent Virginia elections, including the ones by one party actually intended for "me," and the dozens of others from the other party intended for some idiot who at least a decade ago listed my cell phone number on FEC forms associated with "her" donation.

 

[BigPapaWhit]

Bump so as to not get buried behind a million threads on Epstein news.

 

[fatpiggy]

Lawsuit Challenges New York’s Rent Stabilization Law—a Law That Keeps Apartments Off the Market During a Housing Crisis - Institute for Justice

 

[Aardvark86]

Lawsuit Challenges New York’s Rent Stabilization Law—a Law That Keeps Apartments Off the Market During a Housing Crisis - Institute for Justice

Interesting in that it seems to be focused on a particularly specific scenario - units held off market because necessary upgrades in the face of rent control would put them underwater.

Coincidentally, my old stomping grounds is cleverly (they think) seeking authority to regulate "rent gouging". https://www.arlnow.com/2025/11/17/c...-increases-in-contentious-vote/#disqus_thread

Also today, SCOTUS granted cert in a case about whether a putative asylum seaker is "in" the united states (which confers certain process rights) when they present themselves at the border. Bitterly divided 9th circuit en banc decision. They also denied cert in a football prayer case

 

[fatpiggy]

Interesting in that it seems to be focused on a particularly specific scenario - units held off market because necessary upgrades in the face of rent control would put them underwater.

Coincidentally, my old stomping grounds is cleverly (they think) seeking authority to regulate "rent gouging". https://www.arlnow.com/2025/11/17/c...-increases-in-contentious-vote/#disqus_thread

Also today, SCOTUS granted cert in a case about whether a putative asylum seaker is "in" the united states (which confers certain process rights) when they present themselves at the border. Bitterly divided 9th circuit en banc decision. They also denied cert in a football prayer case

I think they have a valid point. If the regulations are too onerous then that amounts to confiscation.

 

[fatpiggy]

 

[Aardvark86]

December arguments start today boys and girls, and it's shaping up to be an interesting month...

1. Today has a real sleeper of a copyright case, having to do with an ISP's duties to cut off somebody's internet access if they have knowledge that the user is infringing a third party's copyrights.
2. Tomorrow we get an interesting 1A case about the duty to disclose donors by nonprofits; lots of process in it but it has to do with the interplay of a state proceeding that could force a disclosure in a way that essentially would gut otherwise 'normal' privacy rights under the 1A.
3. Next monday, we may get a better idea whether humphrey's executor survives or whether the president can remove 'independent agency' members.
4. Then Tuesday, a big political contribution case that would essentially allow even greater spend coordination between political parties and independent organizations.
5. And then WEdnesday, a capital punishment case relating to the mentally disabled and the use of IQ tests.

 

[LafayetteBear]

Election day means just that. I don't think the law says election day(s) from what i can find.

So early voting is out as well, then, eh? Votes cast early are not cast on Election DAY, right?

You should just give up ...

 

[BigPapaWhit]

December arguments start today boys and girls, and it's shaping up to be an interesting month...

1. Today has a real sleeper of a copyright case, having to do with an ISP's duties to cut off somebody's internet access if they have knowledge that the user is infringing a third party's copyrights.
2. Tomorrow we get an interesting 1A case about the duty to disclose donors by nonprofits; lots of process in it but it has to do with the interplay of a state proceeding that could force a disclosure in a way that essentially would gut otherwise 'normal' privacy rights under the 1A.
3. Next monday, we may get a better idea whether humphrey's executor survives or whether the president can remove 'independent agency' members.
4. Then Tuesday, a big political contribution case that would essentially allow even greater spend coordination between political parties and independent organizations.
5. And then WEdnesday, a capital punishment case relating to the mentally disabled and the use of IQ tests.

5. Could be interesting. Lots of discussion and research on the validity of IQ tests and their value going back decades.

 

[Aardvark86]

5. Could be interesting. Lots of discussion and research on the validity of IQ tests and their value going back decades.

Yeah, as to the technical issue, I'm not really sure whether an iq test is really that probative of basic competence in most cases, even accepting the principle that execution of the truly incompetent is immoral.

I'm not particularly invested in this case as my position on capital punishment has evolved over the years. I've never really bought the idea that it's had much of a deterrence effect for a long time, particularly when the only thing you can use it for is first degree murder to begin with. That leaves the basic idea that the king executing killers will keep the societal peace in other ways, ie, vengeance as a means of putting things to bed. I used to believe in that, but the stats just don't lie that that sort of 'justice' isn't really administered in an equitable way across geographies, races, and classes. Beyond that, by elevating the stakes, you just produce a lifetime of appeals that preclude finality, which undercuts the whole second justification.

 

[BigPapaWhit]

Yeah, as to the technical issue, I'm not really sure whether an iq test is really that probative of basic competence in most cases, even accepting the principle that execution of the truly incompetent is immoral.

I'm not particularly invested in this case as my position on capital punishment has evolved over the years. I've never really bought the idea that it's had much of a deterrence effect for a long time, particularly when the only thing you can use it for is first degree murder to begin with. That leaves the basic idea that the king executing killers will keep the societal peace in other ways, ie, vengeance as a means of putting things to bed. I used to believe in that, but the stats just don't lie that that sort of 'justice' isn't really administered in an equitable way across geographies, races, and classes. Beyond that, by elevating the stakes, you just produce a lifetime of appeals that preclude finality, which undercuts the whole second justification.

It sounds like there is not much space in our views. You indirectly touched on money but I would add a) The cost to taxpayers on the running and maintaining of a Death Row facility, along with legal costs of those appeals you mentioned. b) Money can buy someone a better defense, touching on the class issues you mentioned.

 

[fatpiggy]

I don't understand how someone can watch this video and then not believe in the death penalty. That person does not deserve to breathe air and is nothing but a detriment to this society.

 

[UrHuckleberry]

Yeah, as to the technical issue, I'm not really sure whether an iq test is really that probative of basic competence in most cases, even accepting the principle that execution of the truly incompetent is immoral.

I'm not particularly invested in this case as my position on capital punishment has evolved over the years. I've never really bought the idea that it's had much of a deterrence effect for a long time, particularly when the only thing you can use it for is first degree murder to begin with. That leaves the basic idea that the king executing killers will keep the societal peace in other ways, ie, vengeance as a means of putting things to bed. I used to believe in that, but the stats just don't lie that that sort of 'justice' isn't really administered in an equitable way across geographies, races, and classes. Beyond that, by elevating the stakes, you just produce a lifetime of appeals that preclude finality, which undercuts the whole second justification.

Man I like your second paragraph, just wanted to note. I grew up believing in capital punishment but mine has evolved as well. The book Just Mercy was pretty reformational for me. And while the author does has a bias in that that is his life's work, I think he back it up really well, so not just feelings or vibes. No idea how Bryan Stevenson is viewed in the legal profession though.

 

[LafayetteBear]

Yeah, as to the technical issue, I'm not really sure whether an iq test is really that probative of basic competence in most cases, even accepting the principle that execution of the truly incompetent is immoral.

I'm not particularly invested in this case as my position on capital punishment has evolved over the years. I've never really bought the idea that it's had much of a deterrence effect for a long time, particularly when the only thing you can use it for is first degree murder to begin with. That leaves the basic idea that the king executing killers will keep the societal peace in other ways, ie, vengeance as a means of putting things to bed. I used to believe in that, but the stats just don't lie that that sort of 'justice' isn't really administered in an equitable way across geographies, races, and classes. Beyond that, by elevating the stakes, you just produce a lifetime of appeals that preclude finality, which undercuts the whole second justification.

You went to law school as well, no? If so, you surely took Criminal Law, and learned that the two primary purposes of the criminal law are: (1) Punishment, and (2) Deterrence.

Many people who are anti death penalty argue that capital punishment does not have much deterrent effect, and that people who commit murder were intent on doing so regardless of the risk of being caught, convicted, and executed. I tend to disagree with them on that but, even if they were correct, I would remain firmly in favor of capital punishment. There is no arguing that it serves the purpose of punishment. I believe that, in the most egregious of first degree murder cases, the ultimate sanction serves a valuable purpose. I realize that I run against the grain on this issue for a liberal and a lawyer to boot, but that's just how I feel.

 

[Aardvark86]

I don't understand how someone can watch this video and then not believe in the death penalty. That person does not deserve to breathe air and is nothing but a detriment to this society.

Actually, that’s a much easier question from a moral perspective for me as a Catholic convert, but I acknowledge the idea that the state has its own say in the matter.

 

[Aardvark86]

You went to law school as well, no? If so, you surely took Criminal Law, and learned that the two primary purposes of the criminal law are: (1) Punishment, and (2) Deterrence.

Many people who are anti death penalty argue that capital punishment does not have much deterrent effect, and that people who commit murder were intent on doing so regardless of the risk of being caught, convicted, and executed. I tend to disagree with them on that but, even if they were correct, I would remain firmly in favor of capital punishment. There is no arguing that it serves the purpose of punishment. I believe that, in the most egregious of first degree murder cases, the ultimate sanction serves a valuable purpose. I realize that I run against the grain on this issue for a liberal and a lawyer to boot, but that's just how I feel.

It’s funny laffy, our positions are nearly the opposite. I think deterrence is a joke, but punishment was a plausible rationale but is no longer

 

[LafayetteBear]

It’s funny laffy, our positions are nearly the opposite. I think deterrence is a joke, but punishment was a plausible rationale but is no longer

Punishment was but no longer is a plausible rationale? Do tell.

Getting the needle (or the juice, or the bullets, or the noose) is about as clear a punishment as there is. In egregious cases (e.g. mass murder, murder of kids or cops, rape and murder) both the victim's family and society at large are reassured by the fact that there is a consequence (i.e., execution) that is commensurate with the gravity of the crime. Your argument makes sense ONLY if your unstated position is that the costs and delay associated with modern capital punishment cases is so great that you consider it not to be worthwhile. That is at least a viable argument. I just happen to disagree with it. I also believe that, with appropriate statutory and judicial guidance, the cost and delay of capital punishment can be reduced.

 

[Aardvark86]

Punishment was but no longer is a plausible rationale? Do tell.

Getting the needle (or the juice, or the bullets, or the noose) is about as clear a punishment as there is. In egregious cases (e.g. mass murder, murder of kids or cops, rape and murder) both the victim's family and society at large are reassured by the fact that there is a consequence (i.e., execution) that is commensurate with the gravity of the crime. Your argument makes sense ONLY if your unstated position is that the costs and delay associated with modern capital punishment cases is so great that you consider it not to be worthwhile. That is at least a viable argument. I just happen to disagree with it. I also believe that, with appropriate statutory and judicial guidance, the cost and delay of capital punishment can be reduced.

"Punishment" alone is not a rationale, it is merely a description of what happens.

When I say "punishment," what I mean is that the ultimate "end" of the sanction is to create social stability by letting it be clear that the "king's peace" shall not be disturbed and bringing prompt finality to these matters (ie, not so much by deterring the criminal from committing the crime, but by assuring the victim's clan that justice will be done and that vigilantism is not necessary). As noted earlier, where I think capital punishment falls apart on this realm is that it is rarely authorized (legally) and painstakingly slow to be completed due to years of appeals, habeus proceedings, and related challenges. So there is no finality, and to the contrary, the victims' clans get years of resentment and uncertainty. To be clear, I don't care that much about cost. And as also noted, I am cynical (or maybe realistic?) enough to believe that this sense of "justice finality" is also undercut by the uneven application of the penalty across society.

If you can make it work to that end, fine, but I think we're long past that.

 

[fatpiggy]

Interesting

 

[Aardvark86]

Interesting

yeah, i actually think this one might be a little interesting. i could certainly see the court focusing on the 'subject to the jurisdiction thereof' language and hold that it's not 'mere' birth site, but what country a newborn owes his/her loyalty to, in a 19th century kinda way (and perhaps the answer to that is, normally, the country of their parents).

But...I suspect the longstanding tradition of interpreting it to mean 'mere' physical site will ultimately control, in the absence of some congressional action to otherwise define it in a more limited way. So, half a loaf for the administration is my guess.

 

[Aardvark86]

Off topic fellas, but I just did something I’ve never done before. We had 4 inches of snow today, so I hit the sauna for 20 minutes, came out and did two snow angels, and back in.
Brutal but invigorating. No cardiac symptoms, yet.
The polar bear plunge is for the vaguely Canadian.

 

[Aardvark86]

As I enjoy a peppermint martini (meh) in front of the tree (before turning to a st bernardus christmas ale for dinner and the game), I offer a fun little scotus trivia story for your amusement.

Once upon a time in northern Virginia there was an extremely enthusiastic and actually very affable basketball dad who had a somewhat notorious reputation as a ref baiter. So this one game he is really giving it to the ref during his son’s game. The ref blows his whistle, stops the game, walks over to him in the stands, and says for all to hear…

“Mr Chief Justice, that’s enough. You may run your court but am I charge of this one. One more word and you’re outta here!”

Rehnquist was quiet for the rest of the game.

ps - go uva…one of the cradles of originalism.

 

[Aardvark86]

So unfortunately, I was unable to tune into today's arguments in Trump v Slaughter regarding Humphrey's Executor. I may listen to it tomorrow on my drive to DC though. Sounds like a lot of signaling that Slaughter may be out of a job, but Lisa Cook may not (yet) from the coverage. Also sounds like from the coverage this may not have been one of the more compelling arguments given the importance of the issue, with both sides playing a little chicken little with their arguments.

Setting aside stare decisis considerations, this is a really hard case on the executive and separation of powers issues.

 

[UrHuckleberry]

So unfortunately, I was unable to tune into today's arguments in Trump v Slaughter regarding Humphrey's Executor. I may listen to it tomorrow on my drive to DC though. Sounds like a lot of signaling that Slaughter may be out of a job, but Lisa Cook may not (yet) from the coverage. Also sounds like from the coverage this may not have been one of the more compelling arguments given the importance of the issue, with both sides playing a little chicken little with their arguments.

Setting aside stare decisis considerations, this is a really hard case on the executive and separation of powers issues.

Kind of what I've heard too. Where they seem to be signaling that most agencies aren't truly independent, but that they have carve out for the Federal Reserve.

 

[UrHuckleberry]

So unfortunately, I was unable to tune into today's arguments in Trump v Slaughter regarding Humphrey's Executor. I may listen to it tomorrow on my drive to DC though. Sounds like a lot of signaling that Slaughter may be out of a job, but Lisa Cook may not (yet) from the coverage. Also sounds like from the coverage this may not have been one of the more compelling arguments given the importance of the issue, with both sides playing a little chicken little with their arguments.

Setting aside stare decisis considerations, this is a really hard case on the executive and separation of powers issues.

Ashley Renee (@ash.renee411) on Threads

Justice Jackson just shredded John Sauer’s contradiction: “Why is Congress’s decision — made to protect the people of the United States — subordinated to a concern that the President can’t control everything?” She reminds the Court of the framers’ core fear: a president who accumulates power...

www.threads.com

Curious of your opinion on this line of questioning etc.

 

[Aardvark86]

Kind of what I've heard too. Where they seem to be signaling that most agencies aren't truly independent, but that they have carve out for the Federal Reserve.

i suspect that there will ultimately be some sort of discussion/dichotomy around when 'independent' agencies are exercising 'executive' authority (to the point about Roberts' question regarding the FTC of 1937)

 

[Aardvark86]

Ashley Renee (@ash.renee411) on Threads

Justice Jackson just shredded John Sauer’s contradiction: “Why is Congress’s decision — made to protect the people of the United States — subordinated to a concern that the President can’t control everything?” She reminds the Court of the framers’ core fear: a president who accumulates power...

www.threads.com

Curious of your opinion on this line of questioning etc.

it's solid; it's actually what makes this so hard as a case. On the one hand, "independent" agencies arguably allow congress an end run around the veto, but on the other, she's right that we wanted a weak executive at the founding, but on the other other, the rallying cry also related to the colonists' rights to political representaion in parliament (since england's king had already been weakened). And with both of those things said, it's worth emphasizing that the very creature of an independent agency did not exist (and was probably almost unimaginable) until 150 years after the founding. This may be one of those rare situations where original intent and original meaning are uniquely meaningless.

Side comment: I almost didn't read this, as my general bias is that anyone who titles a post to the effect of "so and so just absolutely destroyed such and such" is generally not a serious person and/or doesn't know what they're talking about. i have a lot of respect for justice jackson as one who is willing to engage arguments on not only her own terms, but those advanced by the proponent, but she probably needs better cheerleaders.

 

[UrHuckleberry]

it's solid; it's actually what makes this so hard as a case. On the one hand, "independent" agencies arguably allow congress an end run around the veto, but on the other, she's right that we wanted a weak executive at the founding, but on the other other, the rallying cry also related to the colonists' rights to political representaion in parliament (since england's king had already been weakened). And with both of those things said, it's worth emphasizing that the very creature of an independent agency did not exist (and was probably almost unimaginable) until 150 years after the founding. This may be one of those rare situations where original intent and original meaning are uniquely meaningless.

Interesting to me that it seems like the right leaning and left leaning judges seem to be on the other side of the original intent vs current meaning arguments than they normally would be?

 

[Aardvark86]

Interesting to me that it seems like the right leaning and left leaning judges seem to be on the other side of the original intent vs current meaning arguments than they normally would be?

Ultimately, a somewhat under-the-radar principle in a lot of the court's recent big cases has been the idea that politics is not a dirty word, and that decisions that maximize the potential for political accountability at the ballot box are good. I suspect that's going to come into play here, not only as to the executive (who will have less of an excuse to blame the bureaucracy) but also as to the legislature (who as a result of this and other recent decisions may eventually come around to the notion that they're going to have to make more hard choices themselves).

 

[UrHuckleberry]

Ultimately, a somewhat under-the-radar principle in a lot of the court's recent big cases has been the idea that politics is not a dirty word, and that decisions that maximize the potential for political accountability at the ballot box are good. I suspect that's going to come into play here, not only as to the executive (who will have less of an excuse to blame the bureaucracy) but also as to the legislature (who as a result of this and other recent decisions may eventually come around to the notion that they're going to have to make more hard choices themselves).

Yeah, the legislature has basically just stopped working here recently, seemingly no oversight, new bills, etc. But I won't go too far down that path as I like this thread lol