Reprinted from buzzflash.com
Conservatives on the Supreme Court are working feverishly to potentially dismantle most government regulation that corporations want gone, by dredging up two legal fictions, the 'major questions' doctrine and the 'nondelegation' doctrine. If successful, the court could nullify decades of progressive laws on everything from food safety to environmental concerns. The court is dismantling democracy itself.
December 10, 2021, multiple tornados struck the American Midwest, including Missouri, Illinois, Arkansas, and Kentucky, destroying everything in their path. Amazon employees at the Edwardsville, Illinois 'fulfillment center' were trapped in a flimsy tinfoil structure as a killer tornado stampeded through the sleepy rural setting. Personal accounts from workers and their families claim that Amazon kept these workers as virtual hostages. Those who wanted to leave were threatened with disciplinary action. Though multiple tornado warnings were issued all day, workers weren't allowed to access emergency weather reports because of the company's 'no phone' policy, which forbids phones on the warehouse floor. Six Amazon employees died in that warehouse when the roof collapsed. These deaths were avoidable. In fact, you could argue that these deaths were facilitated by Amazon's systemic abuse of their employees.
That same night another lethal tornado hit the Mayfield Consumer Products Factory in Mayfield, Kentucky. Severe weather warning systems alerted the community some three hours before the tornado hit. Employees at the Mayfield factory were also being threatened by supervisors with disciplinary action, including termination if they left the facility. The employees remained on site, and eight died in the rubble. Kentucky tornado: Factory workers threatened with firing if they left before tornado, employees say (nbcnews.com)Survivors of deadly tornado that leveled factory sue employer, saying they weren't allowed to leave | PBS NewsHour
In both instances, workers placed in danger by their employers have a legal pathway to receive compensation for their injuries and demand their employer be held accountable. This is due, in part to various government agencies such as OSHA, whose job is to defend workplace safety. Without such agency regulation, workers have little to no recourse against abusive employers. These agencies determine and craft regulations meant to implement laws which are generally written in very vague and broad terms. In order to make the regulations fair and subject to various industry standards, these agencies are staffed by professionals in those specific areas of expertise. It should be unnecessary to explain this rationale; that a lawyer shouldn't be crafting regulations on something like pharmaceuticals, nuclear energy or vaccine safetybut Supreme Court conservatives apparently never received the memo.
The conservatives on the court would use two legal fictions to deregulate the government, and yes, subsequently create a chaotic system which could, for instance, assign a lawyer to write regulations for nuclear waste storage or decide whether vaccines are medically safe.
The two legal fictions I am referring to are the 'major questions doctrine' and the 'nondelegation doctrine.' Both fictions were crafted specifically to undermine any regulations which did not receive a legislative permission slip from Congress for any rules or regulations not mentioned in the original legislation.
Conservative jurists know these two fictions are based on little more than rhetorical quicksand, but they don't care.
The intent of these two legal fictions is to bring all government agencies other than the military to a grinding halt. The conservatives on the Supreme Court are determined to create a judicial 'get out of jail free' card for the growing state of 'corporate capture' in the USA. Just this past month the Supreme Court reviewed and decided two cases, specifically engineered to test the "major questions doctrine." Both cases revolve around vaccine mandates. The court is also scheduled to hear a case which would test "nondelegation" in the coming weeks, and that case is West Virginia v. EPA. If these legal fictions are allowed to stand, the Supreme Court could dismantle much of the federal government, especially in the areas of consumer safety, worker rights, and environmental concerns.
The history of the "major questions" doctrine...
The genesis of this fiction began with a few cases which questioned whether federal agencies exceeded their authority granted by Congress as they interpreted various applications of the law. The goal of this fiction is clear. The "major questions" doctrine was implemented so conservatives could nullify any substantive agency authority and subsequent regulations.
This was the first step required to dismantle much of government. The far right-wing is patient if nothing else. Historically, there were three specific cases which served as the prerequisite to dismantling regulations which the business community was determined to kill.
Communications Act of 1934and "major questions" kryptonite...
The first case dealt with the Communications Act of 1934, which established tariffs on telecommunications companies through the administration of the FCC or Federal Communications Commission. In 1994, the Supreme Court ruled that the FCC couldn't unilaterally "modify" tariffs for the telecommunications industry, deciding that such modifications would constitute a rewriting or revision of the Communications Act of 1934. Such changes would have to come about through the legislative process. The fact that this action on the part of the FCC would have virtually abolished those tariffs is not the major point. The goal of these judicial activists was to discredit the delegation of powers to federal agencies, as an illegitimate and thus unconstitutional grant of power to the administrative state.
FDA v. Brown & Williamson Tobacco Corp. Case....
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