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Supreme Court Republicans: the Constitution enacted Mr. Alex Berenson’s Fox News hits

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The Six Horsepeople are coming not only for the ability of the federal government to respond to the pandemic but for much of the New Deal regulatory state:

A majority of the justices on the Supreme Court may not see COVID-19 as an emergency. But they do see it as an opportunity. This unprecedented pandemic, the deadliest in American history, has forced the executive branch to act swiftly and creatively at each stage of the crisis. Facing an often-deadlocked Congress, President Joe Biden has drawn on old statutes to establish new regulations to stop the coronavirus from spreading and killing more people. Yet in so doing, he has given the Supreme Court’s Republican-appointed justices a chance to hobble his whole agenda. And during oral arguments over Biden’s vaccine mandates on Friday, these justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well.

And what a session it was. The nihilism, hypocrisy, and armchair epidemiology on display at times bled into rank anti-vax-ism. The conservative supermajority did not bother to conceal its contempt for the Biden administration’s effort to root new policies in old statutes. As the basis for its employer mandate OSHA cited a federal law that permits it to issue an “emergency temporary standard” when it determines that it’s “necessary” to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.” The coronavirus is both an infectious “agent” and a “new hazard” that poses a “grave danger.” So OSHA’s vaccinate-or-test regime fits pretty neatly into Congress’ mandate. But the Republican-appointed justices appeared to begin with the premise that existing law could not possibly authorize this rule, then worked backward to justify their skepticism.

That’s because these justices emerged from a conservative legal movement that has grown obsessed with obliterating “the administrative state”—the hundreds of federal agencies that actually implement laws passed by Congress. Because Congress cannot anticipate every future problem, it has long given these agencies broad mandates to accomplish some overarching goal however their experts see fit. For instance, lawmakers charged the public health experts at OSHA with determining how best to protect Americans from dangers in the workplace. They did not try to predict every hazard that might arise; instead, they simply tasked the agency with deciding how best to confront the most catastrophic risks to American workers.

To the conservative justices, this approach to governance is a betrayal of the constitutional order. Citing hazy theories that appear nowhere in the Constitution—the “nondelegation doctrine,” the “major questions” doctrine (and the “it must be illegal if I hate it” doctrine)—they have sought to strike down these delegations as unconstitutional. Or, at a minimum, they have interpreted the delegations so narrowly as to strip agencies of all their power and discretion, ostensibly to avoid “constitutional concerns.” This tactic was on full display throughout Friday’s marathon arguments. Chief Justice John Roberts, initially thought to be a swing vote, led the charge, chastising the Biden administration for seeking a “workaround.” (This quote was an apparent allusion to chief of staff Ron Klain’s retweet of a reporter who described the employer mandate as a “work-around,” which lower courts fixated on as apparent proof of bad faith.) Roberts accused the administration of “trying to work across the waterfront,” searching for laws that might empower agencies to mandate vaccines and then “picking them off one by one.”

Roberts citing that Klain re-tweet is especially amazing. First of all, this is a guy who wrote an opinion asserting that Trump’s numerous direct statements were immaterial to the question of whether the travel ban he promulgated was discriminatory. And second, it seems based on the dumber-than-dogshit Gilded Age idea that the use of otherwise plenary federal powers is illegitimate if the Court arbitrarily decides it doesn’t like why the federal government is doing it. (Even taken at face value, the fact that the Biden administration would prefer a newer, broader authorization doesn’t mean that it therefore can’t use the powers Congress did delegate to pursue the same ends.)

The revival of nondelegation doctrine (b. Jan. 1935 – d. May 1935) is going to be a massive disaster. And just one hell of a day for one bluecheck after another to chime in saying that there was nothing at stake in American politics.

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