Ok, sure.
The Constitution grants legislative powers to Congress, article 1. Congress has the authority to delegate some of their powers to other branches of government (executive article 2 or judiciary article 3).
So when Congress writes a law establishing an agency, they can give that agency rulemaking authority (regulations and article 1 powers), adjudicatory authority (a judicial power and article 3 powers), and/or enforcement powers (article 2 executive powers). So Congress can grant to an agency the powers of all three branches of government. The genesis for this power of Congress to create agencies stems from the APA (Admin Procedure Act). So why can Congress do this? Isn't this a separation of powers issue? The Necessary and Proper clause of the Constitution grants government the authority to make rules or establish agencies to carry out valid exercises of Constitutional power. If Congress does have the ability to pass a law outlawing some type of behavior, then it's necessary and proper for them to have an enforcement mechanism. Now, you might say that the President is entrusted with faithfully executing the laws. That is true. But when the executive branch lacks the requisite knowledge or skills to regulate a particular area (for example, environmental regulations), Congress can validly create an agency to do just that.
One of the ways plaintiffs can go about challenging subsequent rules or adjudications by an agency is to argue that the agency exceeded their statutory authority. So for example, Congress passed a statute creating the EPA. This is the EPA's "organic statute". Can the EPA then go and make rules that regulate smartphone usage? No. Why? Because it's beyond their mandate. Agencies can create rules, but they cannot legislate.
Why can't the EPA do this? Because the organic statute creating the EPA must have what is called an "intelligible principle". I won't go too deep into this next part because it would just take way too long, but if you want a more clear picture, look up Whitman v. American Trucking. Suffice to say, that the Court held that each organic statute must contain a short description of what the agency is tasked to do, and the powers it can exercise.
But the intelligible principle idea is so very broad. That's why I say it's a joke in law school, because even the most vague statement is enough to pass Constitutional muster. So if the EPA organic statute said "The EPA shall have the authority to rulemake, adjudicate, and enforce regulations that arise under this statute, in order to effect the task of improving environmental qualities of the US" it would likely be enough. You may think wow, so if the EPA decided that production and mining of silicon in the aggregate contributed even slightly to worse air quality, they can regulate them out of existence. And to an extent, you are correct. However, Scalia made a very important ruling that limited this exercise of power.
"Congress does not hide elephants in mouseholes". Cost was a big issue in Whitman. If Congress did not give direction as to whether to consider something like compliance cost or industry effect, does the agency have the implicit authority to regulate to such an extent? The answer is no. That's because if Congress did intend for the agency to wield such power they would have expressly stated so. If our organic statute just says to help improve environmental quality but not to consider industry cost, then that term is implicated by law. So that's a good thing.
Analysis of non-delegation issues:
- What is the scope of the delegation?
That's why we just discussed cost. If cost is not a threshold issue, because if it isn't, then under a case called Chevron, courts have to defer to an agency's reasonable interpretation of their organic statute. (Much more to it than that, but Chevron would require a very different post, again I can go over later if there is interest). In short, ambiguous language in an organic statute can be interpreted (note, not "cured") by an agency, and that would remain rulemaking (constitutional) and not legislating (unconstitutional).
- This is also a question about whether Congress delegated rulemaking or legislative powers which I got to a bit premature in my analysis under 1. If cost is NOT ambiguous, then the Court wouldn't have to defer to an agency's reasonable interpretation. The test for whether something is rulemaking or legislative is the heart of the intelligible principle standard. But like mentioned previously, it's a low bar. All that is needed is general guidance, not determinate criteria. Some sliding scale is noted, in that the larger the scope, the more criteria are needed, but still, it's a ridiculously low bar. And THAT is the subject of this new ruling.
The idea, at least historically to the Court, is that nondelegation is fine as is because if Congress gives too much power to an agency, it gets struck down (but again, I find this a weak argument because of it only happening twice). The next rationale is that agencies will tend to interpret a broad intelligible principle in a narrow way as to avoid being sued. I think this is weak too because as we can see, agencies exceed their scope all the time (in my opinion) and it's hard to sue them for many people because of standing issues.
There is more I could talk about, but in the interest of not writing a book here, I'll end it with that. Basically, this ruling goes after the intelligilbe principle test, which is the lynchpin that holds together basically all the modern jurisprudence of administrative law. If the Court gives non-delegation teeth, boy, this might fundamentally change the way agencies rulemake and adjudicate in this country. Its implications are massive and I cannot wait to see how it pans out.
No, veterans are not a "suspect class" and thus the government can discriminate against them in hiring and receipt of benefits and such.
Suspect class would be like race, national origin, religion, etc. If a government passes a law that facially discriminates against a suspect class, the Court reviews it under a standard called "strict scrutiny" which forces the government to show that the law is narrowly tailored to further a compelling government interest - a standard which the government nearly never meets.
Other classes, gender or illegitimacy for example have an "intermediate scrutiny" standard which requires the government to show an important government interest that is substantially related to the law.
But all other classes, including age, and yes, veterans, it was reviewed under rational basis which is the lowest standard. Just requires the plaintiff to show that the government is not rationally related to a legitimate government interest. Government almost always wins those.
But now, I have not read this case yet, but it sounds like veterans might have been upgraded to one of the heightened scrutiny standards of review, like intermediate or strict scrutiny. Don't quote me on that, but that's my initial impression. It likely isn't that, but until I read the opinion I can only speculate.
Lawyer here.
This is huge.
Only twice in our nation's history has the Court struck down laws on the basis of the non-delegation doctrine. It's kind of a joke in law school because so rarely has the Court enforced it - and that was during the FDR years when he threatened to stack the Court because they were striking down all his New Deal legislation.
Non-delegation means that Congress has the power to legislate, and cannot delegate their authority to the executive branch to an extent that is deemed too wide. The bar they set though, is like a limbo bar that is 8 feet tall. It's called the intelligible principle test, and it's super easy for the government to meet.
Without getting into the details (unless somebody wants me to) let me just say that this is a HUGE decision.
edit: See my response to "horseypatriot" for more info if you are curious.
Lawyer here.
Admin law is pretty screwed up.
If the petitioner (WV) is arguing that the regulatory authority issued by Congress to the agency (EPA) violates the non-delegation doctrine, I don't like our chances IF the Court keeps to stare decisis (precedent). Currently, and historically, the non-delegation clause has only twice in the Court's history struck down laws on the basis of non-delegation.
Non delegation essentially says that article 1 of the constitution grants to Congress authority to pass laws. Congress can delegate some of this legislative authority to other branches. In the case of executive agencies (like the EPA) this means that Congress is delegating power to the executive branch (article 2). In the past, these types of delegations have nearly all been Constitutional as long as the Congressional statute has what is called an "intelligible principal" which essentially means that Congress has to say what the agency can do. Even something as broad as "The EPA shall have authority to make rules and adjudicate for all issues that relate to ensuring sufficient environmental quality in the US". So an subsequent EPA regulation that sets limits on carbon emissions from coal plants would fall within this intelligible principal.
But, lately the Court has been overruling prior precedents and upturning stare decisis, so that may be a good sign.
Keep your fingers crossed. Because if non-delegation is reworked, this calls into question all future Congressional laws that attempt to delegate legislative power to unelected bureaucrats. And possibly even past delegations.
We'll see.
Any right or privilege secured by the constitution sounds like only fundamental rights recognized in the constitution, like right to marriage, procreate, contraceptives, privacy, voting, etc.
You need to look up the caselaw on this type of statute and see how it's been interpreted.
The biggest mistake people make in this community is trying to interpret a law by themselves.
Trump "stacked" the Court.
Wow. Bullshit.
He appointed three justices to replace those who had retired or died. He stayed within the 9 that is tradition. He didn't stack. SHE wanted to "stack" the court by expanding the number of justices.
See how they lie?
I am so sad to hear that and I can't imagine what you are going through. I'll make sure to pray for you and your husband tonight. I hope it brings you some comfort that he is no longer in pain and the next thing he knows will be the Lord coming back.
If you ever need to vent or have someone to talk to, please reach out to me. Being alone in your heads with your own thoughts is the worst. If not, maybe reach out to friends or church members. My deepest condolences.
Real answer? Because it doesn't meet the elements of incitement.
Speech is incitement if it is (1) intended to produce imminent lawless action, and (2) likely to produce such action.
This intent element (the first) is hard to prove. She would argue that she didn't intend to produce riots. She said "we will fight for the right to control our bodies" and "we should defy the Supreme Court". These words aren't likely intended to produce unlawful conduct (because "fight" generally can be interpreted in context to mean by voting or by other political means) and also fail to meet prong two, as they are not likely (at least, the words alone) to produce unlawful action.
It's frustrating because they impeached Trump for saying "we are gonna fight like hell" but it's also why Trump was not convicted, because it wasn't incitement either.
Double standards, but not illegal per se.
Because this is protected speech. It doesn't rise to the level of incitement which requires IMMINENCE and it doesn't rise to the level of a true threat either because the words arguably weren't INTENDED to convey to Kavanaugh a serious threat of bodily harm.
The prima facie elements of these crimes are not met. No serious lawyer in the country would take it, much less the DOJ.
Ya I see this type of behavior in online forums all the time. On a less serious side than politics, in sports subs on reddit, no matter what team I am following, the game threads will constantly be people making huge knee jerk reactions to literally any minor negative thing that occurs. "See? I told you guys? We won't even win our division this year, much less the world series."
It's like. Ya, maybe you're right. But what are you hoping to gain? Be the biggest whiner of all time?
See reply above