The Constitution Isn't Working

[Celerity]

And the Supreme Court can’t fix it by itself.

https://www.theatlantic.com/ideas/archive/2022/07/congress-inaction-partisanship/670486/

https://archive.ph/daxnf



On the last day of the Supreme Court’s most recent term, the Court released two cases that highlight a challenge to American democracy—a challenge that is the direct result of one of the Founders’ more consequential miscalculations. They granted Congress more power than any other branch of government, and they mistakenly thought Congress would possess a sense of institutional responsibility and authority. Instead it is largely a partisan body, drained of any sense of independent civic duty, and American democracy suffers as a result.

The two cases seem unrelated at first glance. One is West Virginia v. EPA, in which the Supreme Court struck down the Environmental Protection Agency’s Obama-era clean-power rule. The Court relied on the so-called major-questions doctrine, a relatively new term for the legal idea that if Congress intends to delegate significant power to regulatory agencies to fashion new rules and regulations, it has to do so explicitly. The second case is Biden v. Texas. The Court upheld the Biden administration’s decision to reverse the Trump administration’s “remain in Mexico” policy, which required a small number of non-Mexican nationals who were detained at the border to wait in Mexico during their removal proceedings.

What do these cases have in common? They both arose from serious and problematic congressional inaction. In the EPA case, the executive branch was responding to legitimate concerns about climate change, but the executive branch is not supposed to be a lawmaking body. In the “remain in Mexico” case, Congress failed to fund sufficient immigration detention facilities, rendering it impossible for the president to comply with Congress’s mandate that immigrants who are not “clearly and beyond a reasonable doubt” entitled to entry “shall be detained.” This left the president with the choice of releasing migrants into the country or requiring them to return to the “foreign territory contiguous to the United States” from which they arrived.

Article I, Section 1 of the Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States.” With the growth of the administrative state, Congress has effectively delegated some of its legislative powers to administrative agencies, which promulgate regulations that have the force of law. For example, many of the rules that govern American immigration, environmental policy, workplace safety, and the securities industry are regulations promulgated by the executive branch, not statutes passed by Congress.

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[SickOfTheOnePct]

1. Great article

and I agree 100%. There really is only one way to fix it, and that's for one party or the other to take such commanding control of both Houses of Congress that the other party can do little to nothing to stop laws from passing.