While it may be true that "fundamental restorative work is required" to reign in the powers of federal agencies, the reasons why SCOTUS skipped the hard question, as you call it, are obvious, easy to understand, and quite appropriate.
First, the hard question you propose, whether to abolish the federal deep state, wasn’t asked. Imagine the chaos a federal judiciary that answers questions not asked would create…especially involving cases before progressive courts.
Second, the role of the judiciary, and not the role of federal agencies (as the Court found in this case), is interpreting law…but not making law. Federal agencies derive their power from laws enacted by Congress; their power to do so is found in Article I, Section 8, Clause 18 of the Constitution. Therefore, the hard question you ask is for Congress to answer, if it chooses, and not the SCOTUS.
The "chaos" that would result from the judiciary "answering questions that aren't asked" is insignificant relative to the chaos created by the Court doing exactly what it has been doing for 100 years - ignoring the plain meaning of the text of the Constitution. Chaos is all we see today; chaos and power anyway. At any rate, the Court has been answering questions not asked since the very beginning. This was the essence of Marbury v. Madison and, as I pointed out, Dred Scott. While I would love for Congress to abolish the administrative bureaucracy, it is also within the prerogative of the judiciary to do so, whether or not it fits squarely within the "question presented."
So, Congress never had the Constitutional authority to create federal agencies (notwithstanding The Necessary and Proper Clause) because the 10th Amendment gives all unenumerated powers to the States, including the powers Congress delegates to over 400 federal agencies and subagencies…therefore questions about Chevron and APA in Loper Bright are moot and SCOTUS ought to have ruled that the National Marine Fisheries Service agency’s authority is unconstitutional ex facie. In your view, had the Court simply held that the rules created by agencies like NMFS are unenforceable for lack constitutional authority, the consequences, even if it means chaos, are relatively insignificant. Did I get that right?
Seems pretty straightforward. Your "Did I get that right" comment implies you've landed some rhetorical point. I don't think you have. The essence of western civilization is at stake and you've got ... fisheries. Did I get that right?
I recapitulated your argument to be sure I understood it.
So, let’s say SCOTUS had found the National Marine Fisheries Service agency’s authority unconstitutional, ex facie.
Suppose pharmaceutical companies challenge the FDA’s Constitutional authority to regulate the drugs they sell? The FDA has no more Constitutional authority to regulate drugs than the NMFS has to regulate fishing.
What if private mortgage lenders challenge the FHA’s Constitutional authority to underwrite mortgage loan insurance? The FHA has no Constitutional authority to facilitate home mortgage lending.
If a State challenged the authority of the Transportation Safety Administration to secure its airports and the FAA’s authority to regulate its air traffic, these agencies have no Constitutional authority.
The SEC has no Constitutional authority to regulate securities trading, the FDIC has no Constitutional authority to insure bank deposits, and the VA has no Constitutional authority to care for American veterans.
Now, you say that the chaos to come if agencies are stripped of their Constitutional authorities is insignificant compared to 100 years of chaos caused by SCOTUS’s failure to administer the Constitution’s plain language. Even if that were true (it isn’t), chaos is no remedy, nor necessary.
When federal agencies become ill, as in Loper Bright, the Judiciary’s job is to find a remedy within the Constitution for the ailment, not kill the agency and create a Constitutional crisis worse than the sickness.
I think the crux of our dispute stems from a disagreement on "what time of day it is," so to speak. Your comments suggest that you think most American institutions are fundamentally sound, even if they fail (even significantly) on occasion. I think we're way past that point. The barbarians are inside the gates, most governing institutions are totally corrupted, a few are on life support, and none is functioning properly. This was the essence of my "Post-Constitutional Order" article on TAM. At any rate, I hope you are right. I think you are wrong.
Yes the Court should have had the guts to answer the basic questions and not dodge them, ESPECIALLY on free speech. Roberts and company fear not the people but the operatives behind the curtains.
With courageous, principled leadership (make me laugh) from compromised-weasel John Roberts ,this is the best SCOTUS can do…flaccid, feckless Roberts.
While it may be true that "fundamental restorative work is required" to reign in the powers of federal agencies, the reasons why SCOTUS skipped the hard question, as you call it, are obvious, easy to understand, and quite appropriate.
First, the hard question you propose, whether to abolish the federal deep state, wasn’t asked. Imagine the chaos a federal judiciary that answers questions not asked would create…especially involving cases before progressive courts.
Second, the role of the judiciary, and not the role of federal agencies (as the Court found in this case), is interpreting law…but not making law. Federal agencies derive their power from laws enacted by Congress; their power to do so is found in Article I, Section 8, Clause 18 of the Constitution. Therefore, the hard question you ask is for Congress to answer, if it chooses, and not the SCOTUS.
The "chaos" that would result from the judiciary "answering questions that aren't asked" is insignificant relative to the chaos created by the Court doing exactly what it has been doing for 100 years - ignoring the plain meaning of the text of the Constitution. Chaos is all we see today; chaos and power anyway. At any rate, the Court has been answering questions not asked since the very beginning. This was the essence of Marbury v. Madison and, as I pointed out, Dred Scott. While I would love for Congress to abolish the administrative bureaucracy, it is also within the prerogative of the judiciary to do so, whether or not it fits squarely within the "question presented."
So, Congress never had the Constitutional authority to create federal agencies (notwithstanding The Necessary and Proper Clause) because the 10th Amendment gives all unenumerated powers to the States, including the powers Congress delegates to over 400 federal agencies and subagencies…therefore questions about Chevron and APA in Loper Bright are moot and SCOTUS ought to have ruled that the National Marine Fisheries Service agency’s authority is unconstitutional ex facie. In your view, had the Court simply held that the rules created by agencies like NMFS are unenforceable for lack constitutional authority, the consequences, even if it means chaos, are relatively insignificant. Did I get that right?
Seems pretty straightforward. Your "Did I get that right" comment implies you've landed some rhetorical point. I don't think you have. The essence of western civilization is at stake and you've got ... fisheries. Did I get that right?
I recapitulated your argument to be sure I understood it.
So, let’s say SCOTUS had found the National Marine Fisheries Service agency’s authority unconstitutional, ex facie.
Suppose pharmaceutical companies challenge the FDA’s Constitutional authority to regulate the drugs they sell? The FDA has no more Constitutional authority to regulate drugs than the NMFS has to regulate fishing.
What if private mortgage lenders challenge the FHA’s Constitutional authority to underwrite mortgage loan insurance? The FHA has no Constitutional authority to facilitate home mortgage lending.
If a State challenged the authority of the Transportation Safety Administration to secure its airports and the FAA’s authority to regulate its air traffic, these agencies have no Constitutional authority.
The SEC has no Constitutional authority to regulate securities trading, the FDIC has no Constitutional authority to insure bank deposits, and the VA has no Constitutional authority to care for American veterans.
Now, you say that the chaos to come if agencies are stripped of their Constitutional authorities is insignificant compared to 100 years of chaos caused by SCOTUS’s failure to administer the Constitution’s plain language. Even if that were true (it isn’t), chaos is no remedy, nor necessary.
When federal agencies become ill, as in Loper Bright, the Judiciary’s job is to find a remedy within the Constitution for the ailment, not kill the agency and create a Constitutional crisis worse than the sickness.
I think the crux of our dispute stems from a disagreement on "what time of day it is," so to speak. Your comments suggest that you think most American institutions are fundamentally sound, even if they fail (even significantly) on occasion. I think we're way past that point. The barbarians are inside the gates, most governing institutions are totally corrupted, a few are on life support, and none is functioning properly. This was the essence of my "Post-Constitutional Order" article on TAM. At any rate, I hope you are right. I think you are wrong.
https://americanmind.org/salvo/the-post-constitutional-order/
Yes the Court should have had the guts to answer the basic questions and not dodge them, ESPECIALLY on free speech. Roberts and company fear not the people but the operatives behind the curtains.