The Supremes

[workswithseed 2,101]

9 minutes ago, Anastasis said:

You are responding to a towel. 

Did I just respond to an afro.

[Anastasis 23,469]

5 minutes ago, workswithseed said:

Did I just respond to an afro.

A god. 

[tchookem 3,900]

A god. 

Isn't WWS from the NW? Someone from the NW should recognize him. I guess this means he also doesn't support veterans.

[TwiceHorn 31,450]

3 hours ago, JimmyJames said:

Well. And what would that be? I’m not well versed on the background 

Oh shit, I'm thinking of Paul Cassell, who left a district judgeship to go on faculty at Utah, complaining about the salary.  He's a victim's rights loon and writes a lot of tough on crime garbage.

Paul Clement is your pretty standard right-wing Solicitor General.  He keeps his trap shut outside the courtroom for the most part, so that's at least kind of nice.

Edited December 23, 2021 by TwiceHorn

[Bookman 4,639]

4 hours ago, BHMCruiser said:

Holy smokes 

Was it a hard question? If you're talking about the House of Representatives, they represent the people, not the states.

And at any rate, none of this is relevant to the question I asked.

[DDD Dad 14,332]

7 hours ago, Anastasis said:

You are responding to a towel. 

 

[DDD Dad 14,332]

15 hours ago, BHMCruiser said:

Yes I am a constitutional lawyer.

 

 

Edited December 23, 2021 by DDD Dad

[BHMCruiser 1,813]

Fine I’m an unconstitutional lawyer then 

Edited December 23, 2021 by BHMCruiser

[BHMCruiser 1,813]

But please don’t tell my clients

[DDD Dad 14,332]

6 minutes ago, BHMCruiser said:

But please don’t tell my clients

 

[PenelopeWitherspoon 19,100]

11 hours ago, tx 3 putt said:

maga justices about to drop it on Biden 

Oh, I don't know.  They have so far upheld every single vaccine mandate to come before them.  Will be interesting.

[DDD Dad 14,332]

9 minutes ago, PenelopeWitherspoon said:

Oh, I don't know.  They have so far upheld every single vaccine mandate to come before them.  Will be interesting.

This may be more about reining in executive power. Which, conceptually I’m not averse to. However Congress is so dysfunctional it’s hard to see anything getting done.  

[TwiceHorn 31,450]

17 minutes ago, PenelopeWitherspoon said:

Oh, I don't know.  They have so far upheld every single vaccine mandate to come before them.  Will be interesting.

A couple of problems that have little to do with the composition of the court.

Most/all of the vaccine mandates upheld by the Court have been implemented by state or local government units.  That's significant because state and local governments are regarded as having more general police power than Congress or any agency of the federal government.

The second problem is that the agency in question is OSHA.  As the Sixth Circuit observed, "health" is in the name, so that seems kind of valid.  But, there is a body of law relating to OSHA that they can't validly regulate things, like Covid, that aren't unique or particular to the workplace.  I think a decent case can be made that the hazards of Covid are unique within the workplace, but maybe not all workplaces.

But most importantly, OSHA acted under its emergency rulemaking authority.  Normally, agencies have to make a rule, publish it for public comment, and take those comments into account before enacting a rule.  That process takes a year or more. In the past, OSHAs rare attempts to make rules under the emergency power have not fared well, regardless of subject matter.  I think they've done it eight times and gotten reversed six or seven times.

So this might not fare well under any court.  Much like the eviction moratorium.  I'm not sure the Court is really enthusiastic about vaccine freedumb, maybe they are, but it is one more data point that may work against it.

And, DDD raises another very valid point.  Gorsuch, in particular, but several of the justices don't like executive agency action and believe Congress has delegated too much authority to agencies.  Like DDD, I think that is broadly a valid policy position, but that works against this.  This falls under what gets called "Chevron deference," which means courts defer to reasonable agency action.

Edited December 23, 2021 by TwiceHorn

[elfenix 34,230]

gorsuch, alito, and thomas would hit the delete key on the entire CFR if they could.  there's a medicare reimbursements case in front of them right now where they're going to try to get rid of chevron. 

Edited December 23, 2021 by elfenix

[TwiceHorn 31,450]

5 hours ago, elfenix said:

gorsuch, alito, and thomas would hit the delete key on the entire CFR if they could.  there's a medicare reimbursements case in front of them right now where they're going to try to get rid of chevron. 

Probably not Title 37.

[wildcat09 29,349]

They are good with agency rule making that empowers the abuse of immigrants, though. I’m sure it’s due to a consistent legal theory and not garden variety racism.

[Bookman 4,639]

On 12/22/2021 at 5:26 PM, BHMCruiser said:

Their representatives did. The issue of arming freed slaves was discussed at length in the legislative history.

I'm still curious what you meant by the states' "representatives." Were you talking about Senators?

[TwiceHorn 31,450]

11 minutes ago, Bookman said:

I'm still curious what you meant by the states' "representatives." Were you talking about Senators?

Pretty sure he means the drafters and delegates to the constitutional convention.

[Willfully Horn 8,007]

On 12/23/2021 at 12:07 AM, Anastasis said:

A god. 

Post Mortem, or do you have to go through that shit again?

I don’t envy the burden you must carry. Infallibility seems tomb-y.

[TwiceHorn 31,450]

On 12/23/2021 at 12:55 AM, TwiceHorn said:

Oh shit, I'm thinking of Paul Cassell, who left a district judgeship to go on faculty at Utah, complaining about the salary.  He's a victim's rights loon and writes a lot of tough on crime garbage.

Paul Clement is your pretty standard right-wing Solicitor General.  He keeps his trap shut outside the courtroom for the most part, so that's at least kind of nice.

I didn't really intend to impugn Paul Clement in the first place, but he's representing Marc Elias in an appellate sanctions case before the 5th Circuit.  

I suppose you could argue that Elias' money is as green as anyone else's, even if he is a librul democrap.  But I think this goes beyond that, and to the principal of the thing.  So good on Paul Clement.  That Elias would hire him is probably also a good sign that he isn't a troglodyte.

[elfenix 34,230]

On 12/23/2021 at 10:15 AM, elfenix said:

gorsuch, alito, and thomas would hit the delete key on the entire CFR if they could.  there's a medicare reimbursements case in front of them right now where they're going to try to get rid of chevron. 

apparently they're going to kill the administrative state through just the shadow docket now that it has precedential value.  completely invented "major questions" doctrine combines with the also invented "non-delegation" doctrine to make sure that the administrative agencies can't do shit but nibble on the edges. 

 

 

Edited January 14, 2022 by elfenix

[tx 3 putt 76,905]

this court is out of control 

[elfenix 34,230]

7 hours ago, tx 3 putt said:

this court is out of control 

law is calvinball to the conservatives on the court

[Poolflood 845]

6 hours ago, elfenix said:

law is calvinball to the conservatives on the court

It's all calvinball.  But I don't think the agencies should be making up the rules.  That's the job of the worthless fucks that are elected.

 

[DDD Dad 14,332]

It's all calvinball.  But I don't think the agencies should be making up the rules.  That's the job of the worthless fucks that are elected.
 

The ones who won’t enact legislation?

System is broken. We need a leader like Mussolini to get the trains to run on time.

[elfenix 34,230]

2 hours ago, Poolflood said:

It's all calvinball.  But I don't think the agencies should be making up the rules.  That's the job of the worthless fucks that are elected.

 

congress ain't experts in just about anything except maybe lawyering.  you don't want them writing rules. 

[TwiceHorn 31,450]

2 hours ago, Poolflood said:

It's all calvinball.  But I don't think the agencies should be making up the rules.  That's the job of the worthless fucks that are elected.

 

I'm perfectly fine with agencies making up the rules.  But there needs to be court review sometimes; the rub is "how often is sometimes."

[Chad Fuck 17,670]

The ones who won’t enact legislation?

System is broken. We need a leader like Mussolini to get the trains to run on time.

Nah. We just had this. Hard pass.

[ChuckNorrisActionJeans 2,663]

It's just nuts to me that we have someone on the Court (in place of RBG, no less) who has said that legal careers are simply a means to an end to building the Kingdom of God.

Very impartial, eh

[Satchel 6,938]

I don’t know why anybody would be surprised by how the Sarandon Court has conducted itself.

[Captainant 27,654]

5 hours ago, DDD Dad said:

The ones who won’t enact legislation?

System is broken. We need a leader like Mussolini to get the trains to run on time.

It's wild how offended sack and the other trumpists get whenever someone calls trump a fascist. "I alone can fix this" is straight out of mussolini's rhetoric

[Bama Chick 28,596]

I don’t know why anybody would be surprised by how the Sarandon Court has conducted itself.

God.

If the petulant manbabies and dipshits like Sarandon had just shut the fuck up and grown the fuck up and voted for the Email Lady, we’d have a 6-3 court and likely hundreds of thousands of lives wouldn’t have been lost to COVID.

[Satchel 6,938]

3 minutes ago, Bama Chick said:

God.

If the petulant manbabies and dipshits like Sarandon had just shut the fuck up and grown the fuck up and voted for the Email Lady, we’d have a 6-3 court and likely hundreds of thousands of lives wouldn’t have been lost to COVID.

Chances are it could have been 7-2.

[Poolflood 845]

6 hours ago, DDD Dad said:

The ones who won’t enact legislation?

System is broken. We need a leader like Mussolini to get the trains to run on time.

So DDD is pro fascism.  Noted. 

[Poolflood 845]

4 hours ago, elfenix said:

congress ain't experts in just about anything except maybe lawyering.  you don't want them writing rules. 

Lol.   But they write the laws and turn over to bureaucrats.  Can we at least keep those unelected in their narrow lanes?

[Poolflood 845]

3 hours ago, TwiceHorn said:

I'm perfectly fine with agencies making up the rules.  But there needs to be court review sometimes; the rub is "how often is sometimes."

Seems to me the major doctrine argument applies here.

[elfenix 34,230]

7 minutes ago, Poolflood said:

Seems to me the major doctrine argument applies here.

again, something wholly invented because the court doesn't like what the legislature did.  so it legislated from the bench.  speaking of keeping the unelected in their narrow lanes. 

[TwiceHorn 31,450]

8 minutes ago, Poolflood said:

Seems to me the major doctrine argument applies here.

Major questions?

I think Congress should be somewhat more precise in its delegations.  And should probably revisit the delegating statutes from time to time, and maybe supply some statutory interpretations to agencies when they get a little froggy.

But, not only can Congress not get shit done lately, they seem fundamentally incapable of fine-tuning any of their legislation.

[Captainant 27,654]

23 minutes ago, TwiceHorn said:

But, not only can Congress not get shit done lately, they seem fundamentally incapable of fine-tuning any of their legislation.

Fun bit of history - the nazis rose to power by deadlocking the government with a minority party refusing to compromise and exhausting their citizenry from the political upheaval. The people who just wanted things to work eventually ran out of patience and put their faith into a singular man who could make the reich great again.

It's really worth studying the fall of Germany into fascism, there's a concerning familiarity to the history. 

[DDD Dad 14,332]

So DDD is pro fascism.  Noted. 

Check your sarcasm meter.

[Poolflood 845]

21 hours ago, elfenix said:

again, something wholly invented because the court doesn't like what the legislature did.  so it legislated from the bench.  speaking of keeping the unelected in their narrow lanes. 

Or the court said the administrative state/executive over reached on established law. 

21 hours ago, TwiceHorn said:

Major questions?

I think Congress should be somewhat more precise in its delegations.  And should probably revisit the delegating statutes from time to time, and maybe supply some statutory interpretations to agencies when they get a little froggy.

But, not only can Congress not get shit done lately, they seem fundamentally incapable of fine-tuning any of their legislation.

Agreed.   So can we not leave it up to the states if the federal is so broken?

20 hours ago, DDD Dad said:

Check your sarcasm meter.

I was kidding.  I'm certainly not on here enough to keep tabs and my assumption is good faith.  Obviously I didn't come across correctly. 

[wildcat09 29,349]

Some real strong Donny coming in at the end of the discussion vibes here.

[TwiceHorn 31,450]

32 minutes ago, Poolflood said:

Agreed.   So can we not leave it up to the states if the federal is so broken?

20 hours ago, DDD Dad said:

Not always, no.  Some things do require a federal solution.  That is mostly true of all of the executive agencies.

Not so much some of the other legislation, especially criminal.

The FDA is a great example. A federal solution is pretty much required.  It's not something Congress is competent to handle, even if fully functional.

Yet, it's still a hugely problematic agency.  And Congress leaves it alone for the most part, except occasionally defunding it or doing something pharma demands.

Edited January 16, 2022 by TwiceHorn

[elfenix 34,230]

56 minutes ago, Poolflood said:

Or the court said the administrative state/executive over reached on established law. 

the conservative majority's "overreach" was that it hadn't done anything like this before.  of course, OSHA hasn't been around during anything like this, so of course it hasn't done anything like this.  so it's a bullshit argument.  on top of that, they mischaracterized the regulation from the word go, emphasizing the vaccine part and barely paying any attention to the fact that there's a choice to be had (testing).

[Poolflood 845]

26 minutes ago, TwiceHorn said:

Not always, no.  Some things do require a federal solution.  That is mostly true of all of the executive agencies.

Not so much some of the other legislation, especially criminal.

The FDA is a great example. A federal solution is pretty much required.  It's not something Congress is competent to handle, even if fully functional.

Yet, it's still a hugely problematic agency.  And Congress leaves it alone for the most part, except occasionally defunding it or doing something pharma demands.

I certainly want the federal government  to set parameters the states work within.  I'm not sure your reference to the FDA specifically,  but will infer it's beyond and above state control/regulation with respect to interstate commerce.   

To me the OSHA mandate exceeded  it's authority AND the individual states have sufficient control/authority to take action.

[Poolflood 845]

7 minutes ago, elfenix said:

the conservative majority's "overreach" was that it hadn't done anything like this before.  of course, OSHA hasn't been around during anything like this, so of course it hasn't done anything like this.  so it's a bullshit argument.  on top of that, they mischaracterized the regulation from the word go, emphasizing the vaccine part and barely paying any attention to the fact that there's a choice to be had (testing).

Agree to disagree.   As much as I loved Sotomayor's arguments in the recent abortion cases,  I found her arguments lacking and counter productive in the OSHA case.

[ChuckNorrisActionJeans 2,663]

12 minutes ago, elfenix said:

the conservative majority's "overreach" was that it hadn't done anything like this before.  of course, OSHA hasn't been around during anything like this, so of course it hasn't done anything like this.  so it's a bullshit argument.  on top of that, they mischaracterized the regulation from the word go, emphasizing the vaccine part and barely paying any attention to the fact that there's a choice to be had (testing).

THIS. Congress delegated the power, nothing in the mandate exceeds a reasonable reading of that delegation in light of unprecedented circumstances, and testing allows for a workaround. SCOTUS is going full-on disingenuous in its outcome-determinative analyses. Not saying the liberal wing doesn't do outcome-determinative reasoning, but this gutting of exec action as delegated by Congress is judicial activism that stands in conflict with the principles conservative judges claim to stand for. 

[TwiceHorn 31,450]

Here's where I think I disagree with the opinion.

The majority claims that, because Covid is not unique to the workplace, the vaccine mandate is a "general health regulation" that OSHA lacks authority to issue.  There has to be some limitation connected to the workplace for OSHA regulations to be valid, which I think is hardly a controversial position.  I agree and hope everyone would, that OSHA has no authority to issue general health regulations, no matter how dire the emergency.

And, as a general matter, I have no problem with the court reviewing agency actions.  That's a necessity, otherwise Congress could escape judicial review simply by delegating to an agency.

The notion that Covid is not unique to the workplace is a clever way to claim that the regulation is not a workplace regulation.  The Supremes did not invent that little tidbit, though.

But the mandate is limited to the workplace.  It doesn't, as the majority tries to impute, apply to everyone.  It is, in fact, limited to about 1/4 of the US population:  those that work in OSHA-regulated workplaces.

I think it's a positive that this is a per curiam opinion, because this reasoning therefore cannot be extended using this opinion.  And, given that it's an interlocutory case, not on the merits, it should be per curiam whether you agree with it or not.

Edited January 16, 2022 by TwiceHorn

[Poolflood 845]

4 minutes ago, ChuckNorrisActionJeans said:

THIS. Congress delegated the power, nothing in the mandate exceeds a reasonable reading of that delegation in light of unprecedented circumstances, and testing allows for a workaround. SCOTUS is going full-on disingenuous in its outcome-determinative analyses. Not saying the liberal wing doesn't do outcome-determinative reasoning, but this gutting of exec action as delegated by Congress is judicial activism that stands in conflict with the principles conservative judges claim to stand for. 

In light of unprecedented circumstances Chuck cedes all to the administrative state.  But seriously  I appreciate opinion and will continue to ruminate. 

[Poolflood 845]

9 minutes ago, TwiceHorn said:

Here's where I think I disagree with the opinion.

The majority claims that, because Covid is not unique to the workplace, the vaccine mandate is a "general health regulation" that OSHA lacks authority to issue.  There has to be some limitation connected to the workplace for OSHA regulations to be valid, which I think is hardly a controversial position.  And, as a general matter, I have no problem with the court reviewing agency actions.  That's a necessity, otherwise Congress could escape judicial review simply by delegating to an agency.

The notion that Covid is not unique to the workplace is a clever way to claim that the regulation is not a workplace regulation.

But the mandate is limited to the workplace.  It doesn't, as the majority tries to impute, apply to everyone.  It is, in fact, limited to about 1/4 of the US population:  those that work in OSHA-regulated workplaces.

I think it's a positive that this is a per curiam opinion, because this reasoning therefore cannot be extended using this opinion.  And, given that it's an interlocutory case, not on the merits, it should be per curiam whether you agree with it or not.

Look, when I say I'm just asking a question, I'm seriously asking a question.   If the OSHA mandate is within the scope of OSH act and not just a workaround,  why did they limit to companies with 100+ employees and not all employers?   Are there OSHA regulations that limit to employee size.  If it's an issue with all employees,  why the limitation?