I guess it's time for congress to actually pass laws (first abortion, and now greenhouse gasses).
Going to be a lot of anger about the results this court season, but I honestly think it's going to be healthier for democracy overall if congress stop leaning on the courts and bureaucracy to make critical regulations.
I live in a rural area. There are plenty of laws that make sense for my area that would be ridiculous in high density cities and vise verse. Here there is no minimum speed limit and I can drive my tractor down the road by attaching an orange triangle. I can drill my own well. I can chop and burn trees on my property. None if thus would make sense in the city.
What you're describing is pluralism and federalism, not minority rule. Minority rule with your examples would be to force cities to burn their trash because that's what makes sense in rural areas.
The democrats have the senate majority. They just have to be willing to pass laws that the moderates will vote for. For dumb political reasons, they refuse to do this, and this is a forcing function to make them act like adults.
They could even get ~2 Republican votes for broad abortion rights, and likely more if they passed a targeted bill about the health of the mother, incest, etc.
As recently as a decade ago the democrats had a supermajority and passed sweeping healthcare reform bills. It's really not an insurmountable barrier.
The Senate is way out of balance from the power it originally had in 1776.
Delaware was the smallest of the 13 states with a population of 59K. That's 2.36% of the 2.5M total in 1776. There were 26 Senators so each one had about 7.7% voting power.
Today, South Dakota has a population of 905K out of 330M or 0.274% of the population. There are 100 Senators so each has about 2% voting power.
A Senator from South Dakota today represents 1/10 the population that a Senator from Delaware did in 1776. If influence scaled with the same distribution it did in 1776, a South Dakota Senator should only have about 0.77% voting power, but today they have 2%. Population distribution is more widely varied today which creates much more power for lower population states than when in the country was formed.
NYC makes the rules for NY state. And the people of Buffalo, Plattsburg, etc, etc, aren't exactly happy with that or benefiting from that. They have more industrial economies than downstate does and they are kneecapped hard by some of downstate's economic policies.
States that are economically and politically dominated by a single economic zone are a great examples of why minority contingents need strong veto power.
Because the alternative would be not having the rural areas continuing to be part of the nation. If you can't come to an agreement with us, that's fine, try to move the regulation out of the federal government and see if you'll have better luck at the state level with more like-minded people.
How can anyone say that with a straight face in the presence of the electoral college (heck even the elected representatives don't have a legal obligation to vote for their party's candidate) and most importantly gerrymandering. Your assumption that the people can vote to enact change is simply not true.
> [...] but I honestly think it's going to be healthier for democracy overall if congress stop leaning on the courts and bureaucracy to make critical regulations.
I don't think that scales. When some group of people is large enough and has enough different things going on it has to delegate regulation making. There is just too much for the top level of management to be directly regulating everything.
The larger the entity grows and the more it has going on the more regulation making needs to be delegated. At some point you reach the point where even critical regulation has to be delegated.
We passed that point, I think, a long time ago in all the large first world economies.
It is valuable for gov’t agencies to be able to act broadly on their mandates without needing congress to dictate everything. As the dissent puts it, “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.”
We can hope that Congress will step up and legislate, but that seems pretty unrealistic to me. I fear that this is just the latest wave of successes by the party that wants our government to be as toothless and inept as possible and already has a stranglehold on Congress for the foreseeable future.
If the US Congress passed an amendment that stated abortion is legal nationwide, then the Supreme Court would not be able to strike it down as that would be the new federal law.
Yes, but it’s subtle. The mandate of SCOTUS is a check against the other branches of the government to ensure they’re following the Constitution. By passing a Constitutional Amendment, it essentially makes the contents of such inherently constitutional. A Federal law could be (and has been) struck down as being unconstitutional.
I see. I’m probably jumping the gun here, but if such a federal law were to be passed is there something in the Constitution that would disallow it? I suppose it depends on the exact wording and so on?
Generally speaking, a Federal law would only be struck down if its intent or wording specifically violates a clause in the Constitution or its Amendments. So, it really depends on how its worded or what its intent is. I think it's pretty clear that Congress has the Constitutional authority to pass environmental regulations and could extend the EPA's mandates or legislatively codify EPA regulations such that they become law, because they have to do primarily with things which are commerce across state lines and national borders (e.g. where energy originates and where its expended are across borders).
Essentially the same justification for why Congress could create the EPA in the first place allows them to codify any regulations as law or to extend the EPA mandate. What cannot happen is the EPA unilaterally deciding to overreach its mandate, because its taking actions with the force of law but without any check/balance. The Constitution is quite clear that laws are the purview of the Legislative, not the Executive, and the EPA is a function of the Executive.
Amendments and laws are the same thing, so no. The Constitution can refer to the original laws, or the collection of original laws plus all the new ones.
When Congress passes a law, the law (sometimes referred to as the Constitution) gets amended, hence it is also referred to as an amendment.
Edit: ignore this comment, my information was incorrect!
This is incorrect, at least in the US. A Constitutional Amendment requires the affirmative consent of 3/4s of the states for ratification, it cannot be done unilaterally by the US Congress. The Federal laws are considered the lesser laws and the Constitution the highest law.
There is a big big difference legally in the US between an Amendment and something in the USC
So you want for women to have their basic rights for us to go through a constitutional amendment path? Interesting. This feels like fascism through paperwork.
You can say "I don't like X". You don't have to say every is "Fascism". It's ok just to be upset and not like something.
Fascism by the way would be rule by fiat - eg a King or a Dictator can just declare new law: "I declare all Hamburgers shall now be served with bacon and anyone who fails to do shall be executed".
Writing down laws and having a neutral body interpret them is a really important part of fair forms of Government (but not unique to Democracy). There is no defense to a fiat in a Dictatorship but that is a defense in eg Democracy. The publishing, disseminating and authority of rules is the basis of a fair form of government.
Single dictators don’t mean fascism. That’s an extremely simplistic and playground view on fascism. Heck, single dictators are much easier to combat than democratic & bureaucratic fascism.
This isn't some kind of new legislative process. This has literally been the law of the land since the constitution where it's described.
And I'm sorry but I'm going to reject the opinion column of a small newspaper as a source.
You're right in that Fascism is not just composed of single dictators but you are confusing the Rule of Law with beaucracy. Having a high court and requiring laws to be explicit is not "Fascism", it is literally the basis of the legal system.
Where is this neutral body? Half of the court was explicitly groomed to take a partisan stance. They even have the ability to choose their own cases, plus a shadow docket.
Having a body made up of two opposing sides is generally how we build neutral bodies.
The liberal justices are not a beacon of neutrality - they lean towards liberal policies and expansionist interpretations the same way the conservative justices lean towards conservative policies and paring down the Fed.
It is not at all obvious that this is true. I think it's highly unlikely given that the federal government has almost unrestricted ability to pass laws about personal rights (either strictly or in practice, see the federal drinking age of 21, smoking, etc).
I agree that it’s not obvious that such a law would actually be unconstitutional. I just think this court has become an unapologetically partisan body.
That’s not exactly true. Congress can and has passed laws that apply to and override state law. Take minimum wage for example (fair labor standards act of 1938). In your particular example, there are no federal laws so it defaults to the states.
In my understanding -- and I've read good chunks of the leaked Dobbs opinion -- the above claim is not true. The Dobbs decision's reasoning is largely based on a lack of clear federal legislation saying that abortion is legal.
you are correct that the dobb's ruling does not restrict federal abortion regulation, but it is an open question of whether this court would overturn federal abortion legislation as not being related strongly enough to interstate commerce.
Of course that ruling should cut both ways and eliminate the possibility of a federal ban as well, but as we've seen the majority is willing to overturn precedent both as old as 50 years and as young as 2 years (see Gorsuch dissent on Oklahoma v. Castro-Huerta) so its possible they would find the rational to uphold a ban even if they strike down a law mandating access.
They ruled that there is no constitutional guaranteed right to abortion, and in lieu of any federal legislation the decision defaults to the states. They did not rule that the federal government cannot have a say on abortion.
The court ruled in Dobbs that the decision reached in Roe v Wade was improper because there is no right to privacy "deeply rooted" in the Constitution or traditions of the United States, which basically means that if the court sticks with this definition they get to roll back any decisions that they don't like, disregarding two hundred years of precedent.
The fundamental problem is that large important social policy decisions have been made as court cases rather than legislation for the past 50 years. If Congress actually made laws that explicitly granted rights to the people then we wouldn't be in this situation, but by passing the buck to the court they can claim that problems have been solved without actually having to get their hands dirty or face their constituents.
Because they are pandering for votes. They know that the average citizen doesn't know that the law would be deemed unconstitutional based on the most recent ruling.
The Dobbs case has everything to do with whether or not a federal abortion law would be constitutional. The court determined on 10th amendment grounds that the constitution was silent on abortion. Therefore, that power belongs to each state. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
They ruled that the constitution does not confer the right to an abortion. That’s it.
The constitution does not confer the right to clean water and yet, it’s not unconstitutional for the federal government to make laws regarding clean water standards.
Roe v Wade was the court case giving a federal right to an abortion, that was struck down so it became a state's rights issue bc the federal gov't itself never passed a law guaranteeing the the right to an abortion. one major piece of criticism you'll hear again Democrats is that they have taken too much comfort is court precedent then actually passing laws when they were in power
Abortion is not mentioned in the constitution and therefore each state has the power to legislate it as they see fit. Any federal abortion law would be deemed unconstitutional on that basis.
Stop being obtuse. The majority of federal law exists only because broad interpretations of the few subjects the feds were granted the ability to regulate. If abortion was intertwined with interstate commerce or national defense it would be regulated. Of course there's BS that's just as detached as abortion that gets regulated federally but if those subjects were big ideological issues and got the same scrutiny they likely would not be.
It's unfortunate that there isn't a stronger right to bodily autonomy enshrined in the constitution but that's tangential here.
Absent a strict law, congress could just make medicare funding or infrastructure or whatever dependent on abortion access, and every state would fold, just like with the drinking age.
When I travel between states to partake in a service that is allowed in one state but not another that is not interstate commerce. I'm still conducting intrastate commerce within the state where I am located. The federal government doesn't have the authority to regulate all laws federally just because I can travel to a state with different laws.
Regarding bodily autonomy, it becomes a little tricky to make that argument when a mothers' decisions affect a separate body from her own. A body with its own DNA that happens to rely temporarily on her mother. Is the argument that a mother can kill her healthy child as long as it couldn't survive without her?
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Abortion regulation powers were not delegated within the US Constitution and therefore those powers go to the states.
Going to be a lot of anger about the results this court season, but I honestly think it's going to be healthier for democracy overall if congress stop leaning on the courts and bureaucracy to make critical regulations.