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The Supreme Court Is One Vote Away from Changing How the U.S. Is Governed; by JS Gersen

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We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies.  For decades, the Court permitted Congress to delegate broad policymaking authority to federal agencies, because it’s not possible for Congress to legislate the technical details necessary to regulate the environment, health, safety, labor, education, energy, elections, discrimination, housing, and the economy.The Court has not struck down a statute under the non-delegation doctrine since 1935, because it understood that this is both necessary for the country to function and consistent with the Constitution.As Justice Kagan put it, if the delegation in Gundy were unconstitutional, “then most of Government is unconstitutional.” Conservatives complain that that test has been applied in a lax way.'

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I began teaching in 1963,; Ba and BS in Education -Brooklyn College. I have the equivalent of 2 additional Master's, mainly in Literacy Studies and Graphic Design. I was the only seventh grade teacher of English from 1990 -1999 at East Side (more...)

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Here's my take-away: "What will happen then, when the conservative bloc prevails? providers. In sum, we would dwell in a world without the federal law that governs our lives. The alarmist view is that the E.P.A. couldn't have the power to decide how stringent pollution standards should be. The F.D.A. couldn't have the authority to approve or deny applications to sell new medical drugs. The Department of Education couldn't make rules for colleges and universities. The Department of the Interior couldn't govern snow mobiles in national parks. The S.E.C. couldn't regulate financial firms or securities. The F.C.C. couldn't issue rules on net neutrality or Internet service"

"The reason this parade of horribles is not quite right is that very few of us actually want to live in that world, and what the public, Congress, and the President all want over time, the Court is unlikely to stop. And to say that there are constitutional constraints on the scope and structure of congressional delegation to agencies is not to say that no delegation is allowed at all.

"An irony of the conservative majority's insistence on returning to the Constitution's requirements is that non-delegation is not mentioned in the Constitution. It is a set of judicially crafted elaborations on the principles of separation of powers and good governance. Article I simply grants all "legislative powers" to Congress, Article II similarly gives the "Executive power" to the President, and the text says nothing about delegation, nor does it define legislative or executive power. The meaning of these terms, of course, has been subject to many pages of argument and judicial interpretation since."

Submitted on Wednesday, Jul 3, 2019 at 9:01:10 PM

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