It depends a lot on which judges you ask. That is kind of the point: it's not a resolvable question. There is no one true perfect interpretation which is correct.
And a huge part of America is braying mad to tear down governance & institutions. Now that they have so many of their people in such high seats of power, a bullet from the blue could come and topple any institution or governance.
Germane quote from a document referenced in the article:
> “Contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation,” Andrias wrote.
They aren't focusing on the contents of a specific case because there are multiple. And they link to articles that explain the contents of each of those cases.
What the article is doing however is mostly providing historical context for these cases and how they are potentially dangerous given the supreme court's recent change in philosophy.
They buried the lead. This is all really about Chevron doctrine which gives a large amount of deference to administrative agencies. The current court has indicated they might be willing to overturn Chevron which would mean rule making would be more constrained by the governing legislation. There is a lot of regulation that would come under scrutiny under a different standard. The real question everyone is missing is how much quasi legislative authority should be granted to the administrate state.
Explain the constitutional basis for the civil rights act, a law stripping intrastate business owners of their civil rights while congress pulls the ability to regulate intrastate trade out of a hat. It all goes downhill from that insane legislation.
You get sovereignty in return. You know, if the history unfolded differently you could have been speaking French, or Spanish or something else. I think this is the fair basis. Citizens have rights and responsibilities. Why would corporations only have rights if they so insist on being treated as persons?
I'm talking about how congress can regulate intrastate trade in this manner. Most regulatory agencies stomp on that, and stuff like civil rights act is wildly unconstitutional and clearly designated to at best the states per the 10th.
It also protects equal representation and voting rights through power given to congress in the 14th and 15th amendment. As well as the Commerce clause.
Does that mean I can apply for government issued lease of the Hawaiian Home Lands apportionment and sue when they deny me? The 14th doesn't seem to apply to the states, otherwise Hawaii couldn't restrict land to 'the blood' of the right race.
According to our legal systems, you are welcome to try this and argue it and if its truly a constitutional crisis it just might get argued in front of the supreme court.
This finally worked for the 15th. It wasn't until the year 2000 that other races in Hawaii were granted equal voting rights in rice v cayetano. 130 years after the 15th was passed. Maybe in another 130 the 14th will apply to the state.
As for the CRA, there were previous ones defended under 14/15 and it was struck. The unique defense of the CRA is interstate commerce as expanded under wickard to somehow include basically all trade.
> clearly designated to at best the states per the 10th.
I think you're probably missing a word here (or maybe some commas..or maybe autocorrected). But it's related to the 10th amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Ok, so who does the federal congress represent? Could it be... you know, the people?
But I do realize now from looking at your other comments, this is a 30 day old account in which all you do is spout BS white supremacist, conservative, and anti-workers right BS so I'm going to just assume you're paid to be a troll or maybe just another person who's personal choices have screwed them and decide to blame others rather than just addressing your own failings.
I love the anger at the notion that the Federal government might get involved in protecting the rights of people who don't happen to be you. I seriously doubt you'll ever be self-aware enough to understand the irony of it.
The civil rights act actually explicitly designed to work against my race, as it authorized nearby off res businesses to preferentially hire an Indian living near the reservation.
Equality is when I'm allowed to prefer people for being Indian off res, unless they're in the 'communist party' which in a baffling exception explicitly authorizes their firing...
It wasn't Civil Rights Act that did what you are thinking of. It's Wickard v. Filburn. The landmark case which cemented the Federal Government's ability to intervene in acts of intrastate commerce on the assumption of impact on interstate commerce.
If you're actually concerned about a clear and present case of Federal overreach, focus on the actual source of the precedent in what is, as I understand it, the ultimate source of greatly exaggerated Federal reach.
The Civil Rights Act is generally far less controversial in terms of adherence to the Constitutionally defined implementation process.
CRA is biggest cited reason why you can't overturn wickard v filburn, because CRA depends on its expansion of commerce clause, and well we can't lose the CRA.
With the vile CRA gone Wickard will be less defensible for destruction.
The institutions mentioned unfortunately also apply to natural persons, otherwise no doubt you could just burn some homeless persons identity as the employer in trust to avoid these tyrants.
> while congress pulls the ability to regulate intrastate trade out of a hat
The hat would be article one, section eight, clause three of the US Constiution which grants Congress the power "to regulate Commerce with foreign Nations, and among the several States".
Explain the constitutional basis for people's desire to discriminate against people of different races and religions?
The CRA exists because a bunch of shithead treason states hate the constitution's requirements that they treat people equally regardless of race. Prior to the CRA specifying that such actions had actual penalties these states routinely prevent PoC from equal employment, equal service, equal pay, and frequently the right to vote. Before you even get to the whole murdering PoC and people who support them and somehow never being able to find the culprits.
Look I get it that many people live in this delusional world where the constitution only applies if its beneficial to them, and the protections only apply if it protects them, but things like the CRA and the NLRB exist specifically to deal with those shitheads by saying "just because your state government is racist, sexist, homophobic, anti-non-christians, anti-actual-people's rights, and is generally bigoted doesn't mean you can say those policies supersede the US constitution". These laws, regulations, and institutions all came into existence at the federal level, because of treason states refusing to just obey the actual US constitution, which definitionally supersedes any shitty beliefs those rundown BS states may have.
If your argument is "restricting interstate trade in response to violating the constitution" is unconstitutional, I wonder how you reconcile that with punishing people for violating any law? after all isn't incarcerating someone depriving them of their constitutional rights?
This worked for the 15th when they had racist voting (took until year 2000 to fix). Ginsberg, showing her true pro racism colors, dissented in Rice v cayetano. The 14th for HHA would be a worthy case no doubt.
That aside, previous CRA under 14/15 were struck, it didn't stick until expansion of commerce under wickard.
Neither of them are "core public institution". NLRB has probably destroyed more jobs that all recessions combines and might have hurt the poorest and most vulnerable population lot more. They have worked to spread the cancer of collective bargaining powers, coercive unions and other protections for their favourite people at the expense of american consumers.
> FTC
This should be considered unconstitutional. If you provide a service that is cheap you are "predatory", if you provide a service that is very expensive you are "price gauging" and if you are average your are "colluding".
FTC is an evil eye of sauron that is on every damn successful business.
I hope "trader joes" succeeds in putting a stake into hearts of these two vampires.
Businesses are collective entities. They enjoy efficiencies of scale when crafting legal strategies and negotiating with workers. Workers should enjoy collective rights similar to business owners.
Employees already shoulder the most risk in business due to how much of their income comes from the business. You can’t diversify your job across an arbitrary number of employers like a shareholder can diversifying their portfolio across many asset classes and potential movement directions as a hedge.
> If you provide a service that is cheap you are "predatory", if you provide a service that is very expensive you are "price gauging" and if you are average your are "colluding".
If you unsustainably provide a service for less than it costs you to undercut competition then yes it is predatory.
If you coordinate a standard price with your competitors then yes that's collusion.
If you overprice your service or good to extract a massive margin now that there's no competition (or the competition is also doing the same thing) or the consumer otherwise has no other choice then yes of course that's price gouging.
Sure but often these are levied by insiders to shut down outsiders. The long term problem with regulatory bodies is capture. Which is another reason that the core of this issue the Chevron doctrine is bad law. Regulator should be required to hue closely to their legislative mandate.
I see the temporarily embarrassed aristocrats are out in force again.
I'll put it as simply as I can: the NLRB and FTC are there to prevent force and fraud, same as every other liberal institution. You just don't like it because you want your particular brand of coercion to be treated as a right.
The NLRB protects workers' freedom of association from capital's long-standing, multigenerational attempts to cancel[0] that freedom. The FTC protects the market from privatized attempts to impose price floors or ceilings. Large businesses wield power commensurate with governments and should be regulated proportionally to their ability to do government things.
Big business has spent over 50 years insulating themselves from market forces through regulatory capture, selective deregulation, and the complete dismantling of antitrust. Hiding your coercion behind the guise of helping the American consumer is unhelpful, because those consumers are also workers. You are beating up kids for lunch money with the promise that you might give some of it back.
Ah yes, another fine example of the retardation of HN. Tell me again how this place has so much better discussion than [site you cry about constantly].
Why wouldn't they? They've got a supreme court filled with people essentially yelling "hey, throw me money and you'll get what you want!" Half of them worked on the supreme court overthrowing the will of voters in Bush vs Gore. They're corrupt to the core and sycophants to the billionaire class.
At the end of the day, corporations and labor both see the writing on the wall. Immigration is not popular and younger generations in the US are shrinking, there's no replacement population. So theoretically labor should gain power and there is increased labor organization happening in the US. But, corporations are not going to sit back and let that happen. So we see attacks on all levels of government when it comes to labor protections. Hell, several states have already put children back to work. The new deal is fully under attack and I think a lot of the people cheering it on are going to be most hurt by it.
Bottom line, if you enjoy the protections of being a corporation then you follow these rules voluntarily. If you don't want to follow these rules, you are free to act as independent citizens outside the laws defining corporations. Good luck with that.
I agree. Government recognized corporations are formed/created "under" the government in cooperation with the "owners". In exchange for agreeing to being "under" the laws of the government and being regulated by the government the owners get limited liability. If humans don't want that privilege, they are more than welcome to operate under full liability and open up all their assets to any claims made against them...
This is framed in a very specific way. The real question is how much latitude administrative agencies should be given. Chevron says a lot and it says that they don't have to be consistent, nor do they have to even meet the plain meaning of the legislation. The issue this causes is it allows congress to not legislate, but pass the buck to the administrate agency. Congress has been dysfunctional for so long we have come to expect it, but it doesn't mean it’s good for our system.
If congress wants something regulated, they should pass a law and give guidance and the agency should have to meet the clear meaning of the law until its changed by congress. In general, a new president shouldn't affect how agencies implement the will of congress but chevron kinda implicitly allows this. There are lots of regulations that may be swept away if we do away with Chevron but I think it will make the system more accountable and force congress to do its job.
Perhaps, but it is key to keep in mind the direction of the push and the trend here — this is strongly anti-democratic and pro-authoritarain.
To gauge democracy, examine how power is distributed among the institutions, both within and outside of govt.
In democracies, there is substantial or complete independence between the branches of govt — legislative, judicial, and executive, and portions of the executive, and various societal organizations — industry, academy, religions, social groups, sport, etc.
Under authoritarianism, all of the branches of govt and the societal organizations are bent to the serve the ruling group.
This is obviously an attempt by Musk, et. al. on these govt agencies to either eliminate them, or ensure that their will is subject to the whims of these would-be oligarchs. In short, it's a power grab, attempting to take a step towards turning workers back into serfs.
I view it as an effort to restore congress's power which it has frittered away. Congress is the most democratic institution we have and it gets refreshed every 2 years. The thing I want to happen is that there is a way to assure that the elected portion of government, the congress, gets to set our policy not unelected administrate officials.
You also need to view this from both sides. The more freedom of action the agencies have the more they are effectively tools of the president. When you like the president that may seem great, but you always need to look at government power though the lense of the worst person you can image having that power.
The issue is one administration will say yes agency y should do x and the next administration will say no it shouldn't. Only congress though its own actions can determine the remit of an agency. The issue isn't the congress has to be specific its that up until now agencies didn't even have to follow the plain meaning of the law. We should not give so much deference in a democratic system to the unelected.
Yes, and of course, this should be decided by the Supreme Court - a group of unelected political appointees with no term limits whose sole authority to decide the meaning of the constitution comes from a court case in which they just granted themselves that power[0].
As for having Congress decide every bit of administrative policy, we've been there. It resulted in Congress wasting its time playing cat-and-mouse games with monied interests. They'd pass a bill banning, say, a certain deceptive trade practice; the people doing that practice would maliciously comply with the law[1] and come up with a new way to do exactly the same thing; and the courts would run interference on legal challenges until Congress updated the law to clearly and unambiguously ban the workaround. Or the courts would squint really hard at antitrust laws and say "Oh, uh, funny story, Congress didn't mean to ban monopolies, they really meant to ban trade unions. Those jokers just don't know how to write laws."
Administrative rulemaking was Congress's way to short-circuit the courts ignoring clear legislative intent. If you think "do what I mean, not what I drafted" is a violation of separation-of-powers, I will counterargue that so is the entire concept of common law. In the US, higher courts don't just have the ability to overturn specific cases; their rulings also create precedent that lower courts are bound by. This is effectively a legislative power, being exercised by political appointees!
The worst president I can think of so far has been Donald Trump. I absolutely do not want him having power. However, binding administrative agencies' hands to Congress's whims will not fix that problem. Remember: this is a Congress that, by SCOTUS's own hand[2], has been turned into a political donation mill that occasionally moonlights as a legislative body. The cat-and-mouse game will run far slower with Congress being bribed by corporations to just conveniently forget to close those loopholes. And we don't even get an improvement on liberty for anyone else. There are plenty of ways in which the Presidency can absolutely roadkill you personally, without needing to invoke an administrative body with rulemaking authority.
> In democracies, there is substantial or complete independence between the branches of govt — legislative, judicial, and executive
I don't think that's true at all, and I believe separation of powers is (to large degree) and Americanism.
I think most democracies lack or have very weak separation of powers, and are ruled under a principle of legislative supremacy.
That's pretty clear in the UK (where parliamentary supremacy is a bedrock principle of their unwritten constitution), and I believe in Napoleonic law countries there's no sense where a court can strike down a law as "unconstitutional," because I understand courts there aren't bound by precedent in the same way common law courts are.
Yes, and those are considered weaker democracies than where the separations of power are wider and stronger. It can also be observed over time, and the UK is definitely on a slide in the authoritarian direction, not necessarily unstoppable, but definite.
Again, also notice this includes not only branches of govt, but how the societal institutions maintain separation, industry, press, academy, religion, social orgs, nonprofits, sports, etc.
>If congress wants something regulated, they should pass a law and give guidance
I largely disagree. Congress did it's job in creating agencies and outlining their domain. I don't want a bunch of politicians creating regulation on drug approvals for instance, I want physicians and pharmacists doing that. I think the past few years have proven this, the supreme court, congress and executive fudging around with whether or not drugs are safe and efficacious has been a total shitshow.
Having professionals in their respective fields drive agencies is the only way you even come close to keeping up in the modern world. I cannot even imagine a world in which all agency policy shifts drastically every 2-4 years as different administrations come and go. That would absolutely wreck the US.
But it shift now every 4 years with the presidential election. Our system is based on congress writing legislation and the administration implementing that legislation. As it stands now agencies can disagree with their own previous rulings just because a new administration came in.
64 comments
[ 3.1 ms ] story [ 127 ms ] threadIf Vice is hammering on the litigant rather than the contents of the case, I sort of suspect the answer is yes.
And a huge part of America is braying mad to tear down governance & institutions. Now that they have so many of their people in such high seats of power, a bullet from the blue could come and topple any institution or governance.
> “Contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation,” Andrias wrote.
What the article is doing however is mostly providing historical context for these cases and how they are potentially dangerous given the supreme court's recent change in philosophy.
As for the CRA, there were previous ones defended under 14/15 and it was struck. The unique defense of the CRA is interstate commerce as expanded under wickard to somehow include basically all trade.
I think you're probably missing a word here (or maybe some commas..or maybe autocorrected). But it's related to the 10th amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
But I do realize now from looking at your other comments, this is a 30 day old account in which all you do is spout BS white supremacist, conservative, and anti-workers right BS so I'm going to just assume you're paid to be a troll or maybe just another person who's personal choices have screwed them and decide to blame others rather than just addressing your own failings.
Have a good day, and maybe get some therapy.
And I know you won't get that, either.
If you're actually concerned about a clear and present case of Federal overreach, focus on the actual source of the precedent in what is, as I understand it, the ultimate source of greatly exaggerated Federal reach.
The Civil Rights Act is generally far less controversial in terms of adherence to the Constitutionally defined implementation process.
With the vile CRA gone Wickard will be less defensible for destruction.
There, fixed that for you.
The hat would be article one, section eight, clause three of the US Constiution which grants Congress the power "to regulate Commerce with foreign Nations, and among the several States".
The CRA exists because a bunch of shithead treason states hate the constitution's requirements that they treat people equally regardless of race. Prior to the CRA specifying that such actions had actual penalties these states routinely prevent PoC from equal employment, equal service, equal pay, and frequently the right to vote. Before you even get to the whole murdering PoC and people who support them and somehow never being able to find the culprits.
Look I get it that many people live in this delusional world where the constitution only applies if its beneficial to them, and the protections only apply if it protects them, but things like the CRA and the NLRB exist specifically to deal with those shitheads by saying "just because your state government is racist, sexist, homophobic, anti-non-christians, anti-actual-people's rights, and is generally bigoted doesn't mean you can say those policies supersede the US constitution". These laws, regulations, and institutions all came into existence at the federal level, because of treason states refusing to just obey the actual US constitution, which definitionally supersedes any shitty beliefs those rundown BS states may have.
If your argument is "restricting interstate trade in response to violating the constitution" is unconstitutional, I wonder how you reconcile that with punishing people for violating any law? after all isn't incarcerating someone depriving them of their constitutional rights?
That aside, previous CRA under 14/15 were struck, it didn't stick until expansion of commerce under wickard.
Neither of them are "core public institution". NLRB has probably destroyed more jobs that all recessions combines and might have hurt the poorest and most vulnerable population lot more. They have worked to spread the cancer of collective bargaining powers, coercive unions and other protections for their favourite people at the expense of american consumers.
> FTC
This should be considered unconstitutional. If you provide a service that is cheap you are "predatory", if you provide a service that is very expensive you are "price gauging" and if you are average your are "colluding".
FTC is an evil eye of sauron that is on every damn successful business.
I hope "trader joes" succeeds in putting a stake into hearts of these two vampires.
If you unsustainably provide a service for less than it costs you to undercut competition then yes it is predatory.
If you coordinate a standard price with your competitors then yes that's collusion.
If you overprice your service or good to extract a massive margin now that there's no competition (or the competition is also doing the same thing) or the consumer otherwise has no other choice then yes of course that's price gouging.
These really aren't that complicated of concepts.
I'll put it as simply as I can: the NLRB and FTC are there to prevent force and fraud, same as every other liberal institution. You just don't like it because you want your particular brand of coercion to be treated as a right.
The NLRB protects workers' freedom of association from capital's long-standing, multigenerational attempts to cancel[0] that freedom. The FTC protects the market from privatized attempts to impose price floors or ceilings. Large businesses wield power commensurate with governments and should be regulated proportionally to their ability to do government things.
Big business has spent over 50 years insulating themselves from market forces through regulatory capture, selective deregulation, and the complete dismantling of antitrust. Hiding your coercion behind the guise of helping the American consumer is unhelpful, because those consumers are also workers. You are beating up kids for lunch money with the promise that you might give some of it back.
[0] Cancel as in Twitter.
At the end of the day, corporations and labor both see the writing on the wall. Immigration is not popular and younger generations in the US are shrinking, there's no replacement population. So theoretically labor should gain power and there is increased labor organization happening in the US. But, corporations are not going to sit back and let that happen. So we see attacks on all levels of government when it comes to labor protections. Hell, several states have already put children back to work. The new deal is fully under attack and I think a lot of the people cheering it on are going to be most hurt by it.
If congress wants something regulated, they should pass a law and give guidance and the agency should have to meet the clear meaning of the law until its changed by congress. In general, a new president shouldn't affect how agencies implement the will of congress but chevron kinda implicitly allows this. There are lots of regulations that may be swept away if we do away with Chevron but I think it will make the system more accountable and force congress to do its job.
To gauge democracy, examine how power is distributed among the institutions, both within and outside of govt.
In democracies, there is substantial or complete independence between the branches of govt — legislative, judicial, and executive, and portions of the executive, and various societal organizations — industry, academy, religions, social groups, sport, etc.
Under authoritarianism, all of the branches of govt and the societal organizations are bent to the serve the ruling group.
This is obviously an attempt by Musk, et. al. on these govt agencies to either eliminate them, or ensure that their will is subject to the whims of these would-be oligarchs. In short, it's a power grab, attempting to take a step towards turning workers back into serfs.
You also need to view this from both sides. The more freedom of action the agencies have the more they are effectively tools of the president. When you like the president that may seem great, but you always need to look at government power though the lense of the worst person you can image having that power.
That said, if an agency to so XYZ is founded, it needs the authority to do its job.
If Congress cannot even muster the effort to precisely describe the job, it certainly cannot micromanage each job.
Requiring such, depending on how strict, would effectively gut the agencies ability to do anything.
As for having Congress decide every bit of administrative policy, we've been there. It resulted in Congress wasting its time playing cat-and-mouse games with monied interests. They'd pass a bill banning, say, a certain deceptive trade practice; the people doing that practice would maliciously comply with the law[1] and come up with a new way to do exactly the same thing; and the courts would run interference on legal challenges until Congress updated the law to clearly and unambiguously ban the workaround. Or the courts would squint really hard at antitrust laws and say "Oh, uh, funny story, Congress didn't mean to ban monopolies, they really meant to ban trade unions. Those jokers just don't know how to write laws."
Administrative rulemaking was Congress's way to short-circuit the courts ignoring clear legislative intent. If you think "do what I mean, not what I drafted" is a violation of separation-of-powers, I will counterargue that so is the entire concept of common law. In the US, higher courts don't just have the ability to overturn specific cases; their rulings also create precedent that lower courts are bound by. This is effectively a legislative power, being exercised by political appointees!
The worst president I can think of so far has been Donald Trump. I absolutely do not want him having power. However, binding administrative agencies' hands to Congress's whims will not fix that problem. Remember: this is a Congress that, by SCOTUS's own hand[2], has been turned into a political donation mill that occasionally moonlights as a legislative body. The cat-and-mouse game will run far slower with Congress being bribed by corporations to just conveniently forget to close those loopholes. And we don't even get an improvement on liberty for anyone else. There are plenty of ways in which the Presidency can absolutely roadkill you personally, without needing to invoke an administrative body with rulemaking authority.
[0] https://en.wikipedia.org/wiki/Marbury_v._Madison
[1] See also: Apple's response to the Digital Markets Act
[2] https://en.wikipedia.org/wiki/McCutcheon_v._FEC
I don't think that's true at all, and I believe separation of powers is (to large degree) and Americanism.
I think most democracies lack or have very weak separation of powers, and are ruled under a principle of legislative supremacy.
That's pretty clear in the UK (where parliamentary supremacy is a bedrock principle of their unwritten constitution), and I believe in Napoleonic law countries there's no sense where a court can strike down a law as "unconstitutional," because I understand courts there aren't bound by precedent in the same way common law courts are.
Again, also notice this includes not only branches of govt, but how the societal institutions maintain separation, industry, press, academy, religion, social orgs, nonprofits, sports, etc.
I largely disagree. Congress did it's job in creating agencies and outlining their domain. I don't want a bunch of politicians creating regulation on drug approvals for instance, I want physicians and pharmacists doing that. I think the past few years have proven this, the supreme court, congress and executive fudging around with whether or not drugs are safe and efficacious has been a total shitshow.
Having professionals in their respective fields drive agencies is the only way you even come close to keeping up in the modern world. I cannot even imagine a world in which all agency policy shifts drastically every 2-4 years as different administrations come and go. That would absolutely wreck the US.
what happened to that other one? https://news.ycombinator.com/item?id=39218463