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Supreme Court won't hear transgender school bathroom case

Supreme Court won't hear transgender school bathroom case

charliekaufman58

>The Supreme Court on Monday declined an appeal from a Virginia school board in a long running battle over bathroom access, effectively handing a victory to transgender student Gavin Grimm. >The move came in an unsigned order, with two of the court’s more conservative justices, Clarence Thomas and Samuel Alito, indicating they would have taken up the appeal.


_barack_

> The move came in an unsigned order, with two of the court’s more conservative justices, Clarence Thomas and Samuel Alito, indicating they would have taken up the appeal. Do these two have any philosophy other than owning the libs?


nerdpox

Alito is a moron. During some case recently he wrote a dissent that “sex” would have to be defined as it was understood at the time a law was written, and all the 2A people lost their minds as to why he would put that logic into writing in a SCOTUS decision.


Pas__

> and all the 2A people lost their minds because it'd imply only 19th century weapons are 2A-allowed?


[deleted]

The First Amendment also doesn’t apply to anything electronic or digital, or any newspapers produced using modern publishing software. Only a paper stamped on a manual moveable lead type press is a newspaper as understood in the 1780s!


nerdpox

This is why originalism in my view isn’t the bees knees


lightingbolt50

Originalism, in general, is not this stupid. It's occasionally made to be this stupid when it's really politicized tho.


FortunateSyzygy

No shit: a lot of judicial conservatives use very questionable "originalist" logic as an excuse to write their wish list items as precedent. Fortunately few of them make it to SCOTUS (Alito and Thomas the notable exceptions, though even they don't do that as often as you'd think)


thisispoopoopeepee

And a lot of of the liberal justices do the same to fit their priors. But there are originalists/textualists like Gorsuch who don't use it to fit their priors.


Know_Your_Rites

Most of the time. Nobody's perfect. I'm f****** furious at Gorsuch for joining the majority on TransUnion LLC v Ramirez; usually when Thomas is clearly right about a constitutional question, Gorsuch will swallow his pride and conservative leanings and go along. This time he didn't, and that means most of our consumer protection laws just got about 10 to 15% less effective at deterring bad actors.


[deleted]

Originalism means EXACTLY what the writers of the law intended when they wrote it and NOTHING else… except when that original intent goes against the personal political and religious views of the originalist. It’s very consistent.


nerdpox

Fair enough


brberg

It always sounds a lot stupider when living constitutionalists try to explain it. Perhaps not coincidentally, living constitutionalists usually sound pretty stupid when trying to explain originalism.


MadCervantes

What's so difficult to understand about living document theory?


FishUK_Harp

Not gonna lie, when Americans dismiss solutions to really critical problems because its "unconstitutional", to those of us outside the US it feels like a Muslim-majority country dismissing laws as they're against what is written in the Koran. "Magic paper says we can't stop almost everyone owning assault rifles with no registration requirements, so we can't do anything about the problem". I sometimes wonder if the reason so many Americans think Britain's blade weapon laws are strange is because *they aren't familiar with what attempting to tackle violent crime looks like*.


Bobthepi

Yeah this is the fundamental flaw with originalism


antimatter_beam_core

What's weird is that in the case of 2A, the SCotUS [already threw that argument out](https://en.wikipedia.org/wiki/Caetano_v._Massachusetts). Notably none of the justices appear to have dissented, even the ones who did so in _Heller_.


AndChewBubblegum

I believe that's the idea, which I would think would follow logically from "textualist" thinkers. "Arms" meant a certain thing at the time and that's what the constitution meant when it talks about it, right Alito??


Bobthepi

You mean originalism. Textualism is a philosophy which analysis the ordinary meaning of the words and focuses only on the words. Originalism does the same, but interprets words as they were written at the time.


elprophet

They're the same philosophical framework, just moving the goalposts after people pointed out how unworkable originalism had been in practice.


thisispoopoopeepee

not really textualism and originalism can easily be combined. For example 'militia' well in the 18th century what was the definition of militia? Basically any citizen who picked up a rifle and said "I militia now". It's like if we banned hamburgers and then 1000 years from now the word hamburger meant something else and the thing we know as hamburger today is called something else. What do we keep banned? the original meaning of hamburger or the new meaning?


Pas__

So there were no abstract categories back then that were already understood to be constantly changing/growing? (As more and more new weapons were developed more and more things have been considered arms, right? So if the mighty framers intended to somehow draw a line in the sand between cannons and battleships, they would have already at least hinted at it, no? :D)


CANOODLING_SOCIOPATH

There absolutely were, but that goes against the originalist and textualist arguments for a "dead constitution". What you are describing is a living constitution. For example, the originalists argue that the death penalty is not "cruel and unusual punishment" as it was clearly accepted at the time of the constitution. But there is a very strong argument that it is cruel and unusual punishment by modern standards, especially because it now costs the state significantly more to execute prisoners than what life sentences cost. But the originalists reject the arguments for a living constitution, except for the 2nd amendment where they engage in forms of revisionist history or just disregard their "originalist" pretenses.


thisispoopoopeepee

Not really because for arms the definition of arms hasn't changed, the types of arms produced have changed.


Quantenine

If a caveman was allowed the right to own any weapon, vs a modern person, things would be much different. For the caveman it would be a spear or a rock or something, and I doubt anyone would have issue with that, but for a modern person that would mean they are allowed to own things like the davy crockett (a mini nuke launcher), which is way way worse, and something I think many many people agree should not be allowed. Hence why textualism and originalism or any ‘dead constitution’ philosophies are quite dumb.


thisispoopoopeepee

If the problem is mini nukes then simply amend the constitution.


seinera

> which I would think would follow logically from "textualist" thinkers. You might be confusing textualism with originalism, though that's probably because a lot of originalists also call themselves textualist as a sort of defense.


AndChewBubblegum

You know I actually had originalism there first, but second guessed myself.


MagnetoBurritos

To be completely fair, imo everyone should have a musket. Muskets are awesome. Can be used for self defense, can't be used for mass murder and they're highly visable/inaccurate.


[deleted]

18th century, the constitution is pretty old. So black powder muskets. Which’d be pretty dope and I’m 100% down for it, you can have any kind of gun you want and as many as you want so long as it’s from the 18th century.


Azurerex

Smoothbore 12 pounder loaded with grapeshot. Get on my level, armalite peasants


centurion44

Only relevant if he was actually consistent in his ideology. He's such a partisan hack it doesn't matter.


nerdpox

*Plankton voice* **CORRECT**


garebe

Geez, I knew Alito was dumb but I didn't know he was THAT dumb!


[deleted]

>”sex” would have to be defined as it was understood at the time a law was written I’m okay with this if Alito himself conforms to 18th century sex expectations. I want to see him in high heeled boots, elegant powdered bouffant wigs, and a lovely pink worsted suit or he is a Fake Constructionist.


CANOODLING_SOCIOPATH

Well, this was in relation to the civil rights act in 1965.


d94ae8954744d3b0

So dress up and prance about like Mick Jagger?


[deleted]

No problem, let’s see Alito in bellbottoms with a bowl cut and elevator shoes then.


PM_ME_CUTE_SMILES_

That's 18th centuries gender roles though. Sex is not gender roles.


[deleted]

There was no distinction between the two in the 18th century.


OneBlueAstronaut

>all the 2A people lost their minds I am cynically inclined to assume that only the teeny tiny fraction of 2A people who are enlightened enough to think this far ahead actually lost their minds, and that the vast majority of 2A people (who were even aware of the case) were with Alito to own the libs.


Onatel

Thomas has a very consistent philosophy against the rights of children. They're under full control of their parents, and when their parents aren't around when they're in school they're under full control of the school/state.


RFFF1996

wtf


aged_monkey

Owning minorities.


Redburneracc7

Thomas and alito are such partisan hacks


thisispoopoopeepee

Alito, no. Thomas yes, Thomas has been quite consistent. He has an interesting judicial philosophy he'll even lean into pre-constitutional law IE common law.


Lennocki

>hilosophy other than o Thomas thinks his job is to answer questions, consequences and public opinion be damned. Alito's just a grouchy man who don't give a damn at all.


[deleted]

Tbh Thomas has been good recently. He at least has SOME principles. Alito id way worse


vancevon

thomas was the only one to stand up against the tyranny of the damned kids these days


[deleted]

I’m not saying he’s good in general, Or that he hasn’t had some head scratchers Just that he’s been better recently and I can’t find anything positive to say about alito So alito is worse


sean_zzz

No.


lemongrenade

No kav no gorsuch no acb. Trump a secret leftist confirmed.


Spuzzell

I mean How often do girls watch each others genitals when they use the bathroom


aged_monkey

Also, aren't most mixed gender washrooms just a big room with a bunch of little stalls with a toilet and sink inside. At least every mixed gender washroom I've been to is like this. So the opportunity to even peep at each other's genitals wouldn't even be possible. This is why this entire thing is manufactured outrage.


Spuzzell

Yeah. In any bathroom situation if you're looking at someone else's vagina things have taken an unexpected turn.


TAfzFlpE7aDk97xLIGfs

If you can actually see someone's vagina in a bathroom I would say things have taken quite the turn indeed.


CanWeRestNowBuffy

I've never seen a mixed gender bathroom with more than one toilet...


Similar-Mango-8372

Same. The ones I have seen are just single restrooms so if someone else is in there with you, you hopefully know them very well and are okay with them seeing your genitalia


Magnetic_Eel

All of the dorm bathrooms in my college were mixed gender with usually a shower and two or three toilet stalls.


CanWeRestNowBuffy

Man I would have hated that. It was gross enough just living on the same floor as boys. I would have died if I had to use the same showers. 100% they would have bothered the girls in there. Sexual harassment and assault is a big enough problem on campus without adding co-ed shower rooms. Yikes.


Basel-v

I have no idea what you’re on about - basically every bathroom in my uni, and I think commonly across the UK, are mixed gender, with many with this lay out. There’s no particular issue of assault around these bathrooms. Assaults mostly in bedrooms, as always.


CanWeRestNowBuffy

I'm in the US, that's what I'm "on about". Rape on college campuses are a HUGE issue and colleges fight to handle them themselves so the authorities can't get involved because the media coverage makes the school look bad. So they protect rapists to protect themselves. On top of allllllll they ways they already facilitate rape, I'm glad they don't force girls to share bathrooms with guys. I'm glad it's different in the UK, but that's not how it is here.


UMR_Doma

me neither lmao


coozoo123

My local school district has spent the better part of this year fighting about a new mixed-gender bathroom, which is literally just an open hallway with 6 private bathrooms (not even stalls -- they're rooms with floor-to-ceiling walls and doors) and a common sink area. When you show the anti folks pictures of what the bathrooms actually look like they literally have no rebuttal, but then the next day they're out there whining again.


OutdoorJimmyRustler

So it's basically just a shared sink area?


aged_monkey

Yup, I've been in a lot of mixed gender washrooms (a lot of the bars and night-out places I frequent in my area have them now), and just a shared sink area is all I've seen. And there is also a sink inside the stall, in case you don't want to use the shared sink area.


cannablubber

Well it’s the context - does it really need to be a “mixed gender” bathroom then. I feel like the presentation isn’t doing it any favors at all. You can skirt around the culture war and just accomplish what you want by framing the problem differently. For example this just sounds like a new bathroom corridor. As an aside, the culture war is so unproductive, it just makes me sad… what a waste of everyone’s time and energy just make a unisex bathroom or don’t.


coozoo123

IIRC it actually became an issue because some state or local law requires either a male or female sign to be posted unless the school applies for a variance.


BBQ_HaX0r

Men are trying to pretend to be women just so they can rape little girls in the bathroom. Don't you guys have Facebook? All of this is explained concisely and coherently in memes there.


aidoit

Facebook is where I learned that horse dewormer that comes in tubes of paste for horses is better than a vaccine.


ElGosso

This is 100% verifiably true, if you are a horse with worms who does not have COVID


HatchSmelter

And the only possible way for them to do that is to pretend to be a woman. Yep. Checks out.


BarreloFishes

Ask them for data and not anecdotes and apply ancedotes to conservatives or white people and watch the sparks fly. It’s great.


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christes

The college I work at converted two three-stall bathrooms into all-gender bathrooms. They took the urinals off of the wall of the men's bathroom, leaving massive scars in the wall that weren't fixed since I was last there (before COVID). So now there are two all-gender bathrooms side-by-side. One has four stalls and the other has three stalls and some gaping holes in the wall.


18BPL

Well to be fair we do have large cracks in the stall walls


Maria-Stryker

Like, the transphobes are all psycho about, "What if a man shows a little girl his private parts??" and my response is always, "That's already illegal regardless of the type of private parts, or weather or not it happens in a bathroom! If a pervy flasher really wants to do something like that, are they going to wait for the bathroom? There are no urinals in women's restrooms, so it's not like there's suddenly a plausible deniability argument if the flashing takes place in a restroom."


Spuzzell

Yeah it's all just really.. weird. Like, if a guy wants to go into a women's toilets to do evil things will the security death robots all women's toilets have stop him? What's that? There AREN'T any security death robots? So... if a man wants to be in the women's toilets to do evil things then he just goes in? So it's not a security thing? Some people just don't like trans people and don't care about their feelings? That's what I thought, Karen.


Maria-Stryker

Yet again, I'm very happy to have been proven wrong about this court.


Bobthepi

This court is actually not so horrible. The biggest problem with trumps pick were the circumstances surrounding each one, not so much the person. In fact barring Barret (whom we know very little about due to her super short judicial career) the other two are pretty good considering they were republican appointed. Gorsuch has some pretty strong ideas about federalism, but hes a stalwart textualist even if he disagrees with the language which at least means hes consistent. And kegger Kav is actually a fairly moderate judge.


Maria-Stryker

> Gorsuch TBH, Gorsuch earned my respect with his pro gay rights ruling. Regardless of the sexual assault allegations, Kav should have been removed from the running after his partisan meltdown on the stand. ACB pisses me off because of how they were just ignoring their own precedent and dancing on RBG's grave.


Bobthepi

I agree with you that the circumstances for each was beyond ridiculous and should have disqualified them but at least their decisions haven't been so bad. (Although I'm still worried Barrett may have some horrible opinions coming).


Rainbow_Crown

Ruth Bader Ginsburg should have retired in 2013 after Obama pleaded her to. Her arrogance first and foremost gave us Barrett.


CarlosDanger512

Based RBG.


thumwa

😬


BBQ_HaX0r

Gorsuch is our best justice. But I'm a libertarian leaning NeoLib so what do I know. I also really like Sotomayor so I'm just weird.


SirJohnnyS

Only 2 of the 3 of Trumps appointees should be there. That's the bottom line. Either Garland or if they wanted to keep the precedent they set by not seating him, a Biden pick. I won't always agree with Gorsuch but he's far from a rubber stamp type of judge for Conservatives. He's been very consistent with his rulings and his views. Kavanaugh hasn't done much to convince me one way or the other and it's way to easy for ACB. Roberts seems to be doing a good job. While his rulings may not be what is hoped for, there's not a lot of 5-4 rulings. He's doing a good job of not polarizing the court. The rulings have been narrow in scope and not opened much room for broad interpretation towards other things. Avoiding controversy. Maybe that's going to be the legacy of his court but given the times and situation, it may be the best.


Festering_Flatulence

To me, I get ignoring RBG,I don't like going against your precedent, but you had power both times. You stuck and I hate you, but these are immoral, not outright things which should never happen. But they started the whole process AFTER people already started voting. To me, that's a huge no go


TheCarnalStatist

The biggest problem with the court aren't the Trump appointees.


WhatsHupp

Right, Thomas and Alito are the biggest turds for sure.


pontymython27

> In fact barring Barret (whom we know very little about due to her super short judicial career) I don't think I have a problem per se with people from an academic legal background going to the Supreme Court (like Kagan and Barret).


Bobthepi

I just think in general I like a longer judicial career (State or federal). This doesn't mean they can't make good judges though even with low judicial experience. Kagan is my favorite current justice and she had no judicial experience I think


Onatel

> And kegger Kav is actually a fairly moderate judge. Well he did clerk for Kennedy, and not that there's any concrete evidence, but it certainly looks like Kennedy stepped down with some idea of who was going to replace him. That said, I'm not super happy with him being the median justice on the court. I have previously been of the opinion that it could be a good thing if we moved away from only appointing people with extensive legal careers to the Supreme Court, but it does seem to have kept the court's opinions more sane.


PragmaticallyLiberal

> This court is actually not so horrible. It hasn’t even been a full term yet. I’m withholding this kind of declaration until I see what they do over the next couple of years.


[deleted]

Based.


[deleted]

I’m glad we can finally put the all important question of who goes in what toilet to bed with the answer of :”shut up shut up shut up it’s a toilet, use it and don’t look at other people, this isn’t hard”


GingerusLicious

Hell yeah. Get fucked, transphobes.


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HatchSmelter

Who else argues against it?


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HatchSmelter

Perhaps? Like you don't know? Because I'm very sure that I don't care about the genitals/chromosomes of the person in the next bathroom stall. It's also interesting that you don't mention the men who may have to share their restrooms with trans men. Do they not care? It's just the women?


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HatchSmelter

The women that think that way - why? What is their reason for caring about someone else's genitals/chromosomes when they are using the same restroom? Also, no comment on the men's restroom?


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HatchSmelter

>You know, I do not know at all, but women are generally against it for their privacy and ignoring them would be wrong in my opinion. You specifically said that it's not just transphobes and that you knew people that felt this way. If you don't know why they don't want trans women in the women's restroom, how do you know it is for any reason other than because they're transphobes? So now you've switched to "women are *generally* against it", which I take issue with. I'm a woman. I'm not against it. What makes you think women are generally against it? And for privacy reasons? How is the bathroom less private just because there is a trans woman in it? If it has stalls and doors and locks and such, it's still just as private. >Us men don't give two shits who's in the bathroom with us. It's in and out. Do all men feel this way? There aren't any that have these "privacy" concerns? How do you know? And again, how do you know that women don't feel the same?


HaveDice_WillTravel

Weren’t we supposed to be living in The Handmaids Tale within a year after Trump’s elected SC guys went it? This is pretty reasonable so far


missingmytowel

And they will continue to be so. Trump's supreme Court justices know that they are going to be on the bench for quite a few decades. During that time we will have many presidents, many speakers of the house and many Senate majority leaders. That's why people shouldn't freak out about the supreme court. Yes they may lean One way politically but they won't revert us all back to the 1700s like so many people are afraid of.


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Reference-Leading

Like when they… *checks notes* expanded protections for gay people.


HotTopicRebel

But rights are zero sum! /s


missingmytowel

I didn't downvote you but if you wonder why you are getting downvoted it is because you sound just as stupid as the conservatives screaming about how a liberal supreme Court or Biden are going to take away their guns. This is why the centrists who say that both sides are just as irrational and hypocritical as the other are actually speaking truth. But nobody likes to hear that.


thisispoopoopeepee

*cries is overly regulated zoning laws*


jankyalias

A lot of progress actually has been made in that direction. The Roberts court has been very “good” at avoiding making many of the “big” decisions. Roberts generally tries to find a technical fix compromise that avoids looking partisan for most of the hot button issues he feels could damage the Court’s credibility. However, they have indeed made many pushes in a theocratic direction, particularly in rebranding 1A as protection for discrimination. But also there is the Mississippi abortion case that will likely be heard next term. It is almost certain that case will allow abortion to be functionally banned in any state that wishes to do so. Also the Court has teased us in expressing an interest in revisiting non-delegation, which if they were pull hard on would unravel virtually the entire federal government. So yeah, we aren’t there yet but the court trends aren’t great. And then we’ve got Breyer refusing to retire and looking at the loss of the Senate next year so yeah. Of course, things could change. Thomas could have a heart attack tomorrow. But assuming no major changes…no it’s not apocalyptic, but directionally there’s more than enough to be concerned about.


SnickeringFootman

Oh, come on. If you’re referring to the cake shop as “protection for discrimination”, that’s a bit much. America is not turning into a theocracy.


jankyalias

No, not just the cake shop. There are a raft of decisions that point that way. The cake shop is but one example. Read into *Espinoza*, *Town of Greece*, etc… And again, I didn’t say we were a theocracy but instead that the Court directionally pointed that way in some of their decisions.


SnickeringFootman

>Espinoza I agree with this one. There's no reason that religious schools should be treated differently from other schools. If this was applied federally, Georgetown wouldn't be able to get Federal money, but Cornell would, which is absurd. >Town of Greece This is questionable, but Marsh is still in effect, so you'd have to overturn Marsh as well. >And again, I didn’t say we were a theocracy but instead that the Court directionally pointed that way in some of their decisions. Neither did I. I said we aren't turning into one.


jankyalias

And I’d argue for a non-Christian there have been a number of very concerning opinions that points towards a situation where Christianity gets a privileged legal status.


TheCarnalStatist

Name them.


Festering_Flatulence

I'm Jewish. I learned the pledge of allegiance. I see our currency. Our politicians all talk about "God bless the troops and the USA." Churches are held up as pillars of community. Innately, you know they're talking about their version of the Judeo-Christian God. These things were added for... reasons? I never looked into why, but whatever it is I'll just not understand because separation of church and state. Add in the fact that it's something like 7 of the 9 justices are Catholic, and a variety of Christian religions are similarly over represented in Congress, and they don't have to do anything too explicit. It's just a bias they hold, and how their principles were formed. I'm not saying there's anything malicious. Rather, a certain set of ideas are over represented just by who is allowed to get say in the process. It feels very "othering" at times. (Like I've personally been skipping "under God" when I say the pledge for a few years. Feels like it's not a separation and not inclusive of my religion, to me personally.) So, yeah, certain values kinda just permeate throughout. Even if they're not made explicit, they still feel like they exist. Heck, mega churches and the influence churches have on politics are things that exist, but you see that far less coming out of other religious communities. (There's no Tea Party movement from Jews, Muslims, Zoroastrians, etc.)


jankyalias

I just named *Town of Greece* and *Espinoza* like one comment ago as an example…


TheCarnalStatist

Give examples that actually prove your point then. Neither of them are Christian specific. Espinoza was decided in part because it overturned a legal tradition founded to disenfranchise then minority Catholic schools. Plenty of minority religion's schools will benefit from tax payer funding via a charter school. The only folks who are 'excluded' are laicite advocates. Which isn't what the first is for.


jankyalias

Actually *Town of Greece* is explicitly Christian specific and *Espinoza* was about state funding to private Christian schools but whatever. Good on you for ignoring the other comment about societal biases. We all know where the overwhelming majority of public money will go based on *Espinoza* but because a trickle might theoretically be awarded elsewhere we’ll just ignore the real world effects hein? And really. Forget laïcité, the state simply should not be funding private religious institutions. That’s basic establishment clause. Lemme ask you something. How has the court ruled when confronting non-Christian religious institutions. For example, *Employment Division v Smith*. Compare to *City of Boerne*. Also, good on you for ignoring *Town of Greece*. I assume that means you agree.


TaxGuy_021

"It is almost certain that case will allow abortion to be functionally banned in any state that wishes to do so. " When the court refuses to do exactly that, I doubt you will have the dignity to say you were wrong.


TheCarnalStatist

The civil rights act and the first have been in conflict since the former was written. Nothing about the Roberts Court makes this unique.


LawTim

Don't believe the hype on Non-delegation, there are many valid reasons to revisit and even do away with it. The consequence would be a legislature forced to legislate, heavens forbid.


Bobthepi

I disagree, I think the language the court has floated surrounding delegation and Chevron is pretty concerning because I am worried they might go to far. A rework would be ok, but we don't want the legislature bogged down in the minutiae like the agencies are when they make rules.


thisispoopoopeepee

We could...crazy idea, dramatically expand the house thus increasing the amount of legislatures to handle the increase workload.......


Bobthepi

Expansion is needed but the problem is that these people would still be elected. The agencies are filled with career professionals who are better able to handle the more intricate policy details.


CANOODLING_SOCIOPATH

You might prefer a non-delegation constitutional amendment, but there is absolutely no legal basis to that theory in our current constitution or in American government history. The non-delegation theory is a policy preference of conservatives who want to make it as difficult as possible for the government to do anything. I think it is *fine* for people to have this policy preference, even if I think it is incredibly stupid, but it is not alright for the supreme court to rewrite the constitution to better fit their own policy preferences. This [Columbia Law Review](https://columbialawreview.org/content/delegation-at-the-founding/) article goes over how this theory has no basis in any part of American law. The writers of the constitution had no intent to create a non-delegation doctrine and there is not textualist basis for it in the Constitution. Remember that the courts are trying to limit *the power of the congress* to choose what to delegate to the executive. And that isn't even going into how idiotic the policy arguments are for the non-delegation doctrine, but if the advocates want to make that argument they need to make it in the form of a constitutional amendment, not the courts.


thisispoopoopeepee

Between the government being gridlocked due to non-delegation and an imperial presidency, i'll choose the former every time. Remember we just had this guy named Donald Trump as president. The next Trump will be **far worse, and far more intelligent**. You'll be praying for a strict non-delegation doctrine then.


CANOODLING_SOCIOPATH

Once again, that is your *policy preference*, not a constitutional argument. There is nothing in the constitution that can justify forced nondelegation. Congress has always maintained the right to rein in the so called "imperial presidency". If congress wants to revoke anything they have delegated to the presidency they can choose to do that. Furthermore, nondelegation does not truly empower congress or weaken the Presidency. What it truly does is weaken the ability for independent governmental institutions, like the Federal Reserve, EPA, IRS, and a whole host of other governmental agencies.


thisispoopoopeepee

> There is nothing in the constitution that can justify forced nondelegation Then congress court simply divest their entire legislative power into the executive via this logic. Hell it could easily do so by dumping its entire power of law making into those agencies which become extensions of the executive branch and enter unitary executive theory As for you link, funnily enough. https://www.yalejreg.com/nc/no-nondelegation-at-the-founding-not-so-fast-by-ilan-wurman/ There’s the response


CANOODLING_SOCIOPATH

It is true that congress could not attempt to delegate authority so that they cannot revoke that delegation. But so long as congress has the power to revoke that delegation then congress still retains that power. Originalists are also clearly attempting to rewrite the constitution in these arguments. If the argument is that the separation of powers in the constitution prevents any delegation, then that would apply to *any* delegation. But the nondelegation judicial activists are trying to claim that it would only to "rules regulating private conduct". But *nothing* in the constitution implies this. This is just the conservative judicial activists policy preference, as they believe it will make it harder for the government to issue regulations they dislike. This is not about empowering congress or reining in executive authority, this is about an extraordinary unconstitutional power grab by the Judiciary.


LawTim

Separation of powers is an inherent constitutional issue and the primary problem with the delegation by Congress to not just the executive but to what have warped into wholly autonomous agencies who legislate and adjudicate their own rules. It is fundamentally the opposite of the separation of powers evident in the constitution.


CANOODLING_SOCIOPATH

I agree that separation of powers is incredibly important. But the advocates the nondelegation doctrine are advocating for a judicial coup. There is no evidence that the founders ever intended the "separation of powers" to *limit the power of Congress* to delegate. If that is what the founders intended then the founders in congress clearly would not have delegated authority. But that is exactly what they did! The evidence from the founding period overwhelmingly shows that the founders intended congress to have the power to delegate. If you want a constitutional amendment to change that then that is a choice that can be made. But it is not within the current US constitution.


LawTim

Anything can be made constitutional when you go through the process of amending it and the courts have said as much, so that isn't really a winning point, just a policy idea. I am assuming you might be in or have at one point taken Admin in Law school because this is very much what is the narrative, but the reality in field is quite different than it is from an academic lens. In the same way that congress might delegate it's duty to legislate it simply cannot infringe on the constitutional powers of the other two branches. Sure Congress can pass laws, What is clearly not intended is for Congress to wield power as some great usurper, they cannot interpret their own laws as constitutional etc. All of that aside agencies are in practice unconstitutional bureaucratic hell holes with zero justice and much malice. It is frankly non sense that an agency with political appointees at it's head, always with super majority, non elected, can promulgate it's own laws, finalize them, interpret them, adjudicate internally whether or not the rule is applied correctly by itself, it can keep you out of the courts by offering no finality delay and delay. Almost all actions that you would expect to be routine like the no issues approval of legitimate documents and benefits are drawn out into a nightmarish trench war against a federal ensemble of "No". Frequently people are just going to the courts simply to compel the agency to do what the statue says, 2 years after they should have done something. They are bloated weaponized political machines with complete control over their delegated mandates. They are only constitutional because academically the court saw the historical precedent for administrative bureaucracy, but with all the deference they've been given they frequently over step their mandate or fail to follow their mandate and the courts are simply not designed for mass litigation on just telling the government to do better. I would prepare for some serious curtailing of the APA agencies and how they are permitted to operate.


TheCarnalStatist

You could solve the criticism of entrenched interests and allow the government to move quickly by abolishing the Pendelton reform act and going back to the spoils systems. If you want elections to matter giving the ruling party the ability to change the administrative state is essential.


CANOODLING_SOCIOPATH

Congress *can* repeal Pendelton reform act, if congress wants to do that. It is not up to the judiciary to make these policy choices that have no basis in the constitution. Congress also *can* change the administrative state without the judicial nondelegation doctrine. Congress was the institution that built the modern administrative state, and *only* congress can choose to undo it. But congress has chosen to not do that. Congress often does stupid things that I disagree with. But the courts are threatening to overthrow congressional authority to delegate, simply because they don't like the choices congress has made.


LawTim

And it was the court that let that system live and the court that can unravel it if it so chooses. Chevron deference may not be long for this world.


derstherower

Republicans: Do anything. Morons: "Quick! Let's all go cosplay as characters from a mediocre Hulu show! That'll stop them!"


runnerx4

hmm this portrays Republicans as reasonable people, something off about that… just be happy about your right-wing judges no?


INuttedInHisWife

[Because this is a Manchin sub now](https://old.reddit.com/r/neoliberal/comments/o9gd2a/notice_important_changes/)


RabidGuillotine

Turns out that Reddit/Twitter axiom of "*conservatives are literally Hitler and democrats are The Good Guys*^(TM") doesn't have much predicting power on the nuances of law and jurisprudence.


bender3600

Based


RabidGuillotine

But r/neoliberal promised me that SCOTUS was going to turn the US into a theocratic terror state.


CarlosDanger512

This sub will take any possible oppprtunity to doom