But by vesting the law-
making power in the people’s elected representatives, the
Constitution sought to ensure “not only that all power
would be derived from the people,” but also “that those
entrusted with it should be kept in dependence on the peo-
ple.” Id., No. 37, at 227 (J. Madison). The Constitution, too,
placed its trust not in the hands of “a few, but in a number
of hands,” ibid., so that those who make our laws would bet-
ter reflect the diversity of the people they represent and
have an “immediate dependence on, and an intimate sym-
pathy with, the people.” Id., No. 52, at 327 (J. Madison).
Today, some might describe the Constitution as having de-
signed the federal lawmaking process to capture the wis-
dom of the masses. See P. Hamburger, Is Administrative
Law Unlawful? 502–503 (2014).
Admittedly, lawmaking under our Constitution can be
difficult. But that is nothing particular to our time nor any
accident. The framers believed that the power to make new
laws regulating private conduct was a grave one that could,
if not properly checked, pose a serious threat to individual
liberty. the framers deliberately sought to make lawmaking diffi-
cult by insisting that two houses of Congress must agree to
any new law and the President must concur or a legislative
supermajority must override his veto.

there it is fellas, AnCapistan soon

Gorsusch & Alito's concurrent decision does indeed basically say any gov agency which isn't congress or the white house is essentially unconstitutional

When Congress seems slow to solve problems, it may be
only natural that those in the Executive Branch might seek
to take matters into their own hands. But the Constitution
does not authorize agencies to use pen-and-phone regula-
tions as substitutes for laws passed by the people’s repre-
sentatives. In our Republic, “it is the peculiar province of
the legislature to prescribe general rules for the govern-
ment of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810).
Because today’s decision helps safeguard that foundational
constitutional promise, I am pleased to concur.

They going after election laws next,yeah America had a solid run.

So companies polluting and destroying the Earth are getting off free?

Couldn't they just weasel out of that and say they work under the White House?

the court is essentially saying there is no substitute for law which works in lieu of law. so if they expect something to be broadly enforceable, congress has to pass a law for it, they can't rely on bureaucracy to create policy.

in regards to the company thing, they aren't necessarily siding with corporations (this was a state vs gov case not a company vs gov case), they're instead basically saying "if congress truly believes these regulations should exist then pass a law to codify these regulations instead of relying on implied authority"

Ah, so basically any agency "laws" are null and void atm until Congress actually passes these as legit laws?

Is that better in the long run on paper right? Cause we've seen how gridlocked congress has been for the past 20 years.

we’re doomed

The ruling isn't explicit in being wide-reaching enough to nullify all laws but the implication of the precedent is if anyone else was to bring these agencies to court over similar things, those agencies would almost be guaranteed to lose every time

to the 2nd part, while some may argue yes (half of Gorsuch/Alito's decision is basically just like "Congress do you f***ing job if you want laws to exist, it's not the job of agencies"), in reality it's unlikely congress will ever move on from gridlock, and most bureacratic regulations have historically been more in line with democrats than republicans (like last 20 years). like take the CDC measures during peak COVID as an example of that. in reality this does return to the "original view" of congress (as Gorsuch says himself, "law making is supposed to be slow and arduous for a reason"), but whether or not the society we have is able to deal with that in modern conditions is something different

Yeah, society and tech is way too fast moving for laws to still move at a decade long snail's pace.

affirmative action & business discrimination cases being held in October

bloomberg.com/news/articles/2022-06-30/harvard-affirmative-action-gay-rights-next-up-at-supreme-court?srnd=premium&sref=omvmmwIg

Been reading Biden v. Texas trying to figure out which side more correctly interpreted the statute at issue in the merits of the case:

Section 1225(b)(2)(C) of the Immigration and Nationality Act says that "an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may be returned to that territory pending a proceeding under section 1229a of this title."

In his majority opinion, Breyer says that the word may"plainly confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings." Ergo, Biden doesn't have to keep "Remain in Mexico" because the statute says he has the discretion to keep it.

The Petitioners contend that that part of the statute is read in connection with another part, §1225(b)(2)(A), which says that "an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title." Of course, the government doesn't have resources to detain every single migrant of the type described; ergo, §1225(b)(2)(C) is a safety valve that gives the government feasible options given that lack of resources.

However, the DHS' discretion implied by the word "may" is limited to, per Alito, "three options regarding the treatment of the aliens in question while they await removal or asylum proceedings. They may be (1) detained in this country or (2) returned to Mexico or (3) paroled on a case-by-case basis. Congress has provided no fourth option, but the majority now creates one. According to the majority, an alien who cannot be detained due to a shortage of detention facilities but could be returned to Mexico may simply be released. That is wrong."

Kavanaugh's concurrence characterizes what the Biden administration is doing when "simply... releasing" migrants into the interior of the country as "granting them parole into the United States," which is allowed "if parole provides a “significant public benefit.” 8 U. S. C. §1182(d)(5)(A). Parole entails releasing individuals on a case-by-case basis into the United States subject to “reasonable assurances” that they “will appear at all hearings.”"

BUT Alito thinks that "the number of aliens paroled each month under that provision—more than 27,000 in April of this year—gives rise to a strong inference that the Government is not really making these decisions on a case-by-case basis." What is happening is not a statutorily-allowed exercise of parole BUT "a fourth option" that violates the statute.

The majority says that a discussion of parole isn't even necessary: they reject the Alito dissent’s characterization of how 1225(b)(2)(A) is to be read as limiting the scope of 1225(b)(2)(C)’s grant of discretionary authority. They say that the statute says “may,” which “does not just suggest discretion, it “clearly connotes” it… and is therefore inconsistent with respondents’ proposed inference from the statutory structure. If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” It would surely instead have coupled that grant of discretion with some indication of its sometimes mandatory nature—perhaps by providing that the Secretary “may return” certain aliens to Mexico, “unless the government fails to comply with its detention obligations, in which case the Secretary must return them.” The statutory grant of discretion here contains no such caveat, and we will not rewrite it to include one.”

They go on to say that even if “§1225(b)(2)(A) does require detention of all aliens that fall within its terms… and… the Government is currently violating its obligations under that provision,” Alito’s interpretation is practically self-refuting,” for if shall means shall, and not may, in §1225(b)(2)(A), then may means may, and not shall, in §1225(b)(2)(C).

The rest of the justification for the decision says that the executive’s power to control foreign policy is being exercised by ending Remain in Mexico, and that courts “must be deferential to the President’s Article II foreign-policy judgment,” but the quibble over “shall,” “may,” and §1225(b)(2) is the lynchpin of the difference between the majority and dissent.

I think that on balance, as a matter of statutory interpretation, it makes less sense that “the contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A)” (as the majority holds) than that “the failure to make use of the discretionary option is not a valid excuse for non-compliance with the command that certain conduct “shall” be performed” (as Alito rebuts).

For true nerds: scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-PACK-OT2021.pdf

interesting that statistically the conservative judges are more willing to side with the liberal judges on a mixed basis depending on the case, but the inverse is virtually never true

thought the title was saying the supreme court is new and improved haha

i suppose it makes sense if the conservative court is granting cert to cases which the liberals would rather not hear in the first place

and also that the conservative justices were basically picked first and foremost for their perceived likelihood to not go Souter/rule the right way on what eventually was Dobbs

so they're allowed their little toy liberal issues (like Gorsuch and the natives) so long as they fall in line when it really matters

as far as I can tell, Denezpi (Breyer) and George (Kagan) were the only 6-3 cases where one liberal broke ranks with the other two to join the conservative majority

(both time Gorsuch 'took their place' on the dissenting side)

It’s actually crazy that unanimous decisions, which are always at least a plurality and were two-thirds as recently as 2013, were down to 29% with 6-3 the most common at 30% (see page 10 of the ‘Stat Pack’)

Land of the free, thank you republicans

Thank god Hillary lost

/sarcasm