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naraburns  nihil supernum  1yr ago (text post)   35002 thread views

Culture War Roundup for the week of April 3, 2023

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So I don't think things will change.

Courts around the western world have been remarkably deferential to this nonsense. And the US courts are (uncharacteristically) more timid and deferential than those in other common-law countries. This is driven in part by a progressive belief in an activist, technocratic state and in part by conservative distrust of judicial activism.

Conservative jurists seem to be slowly coming to their senses. And ithelps good if there is a broader groundswell to support them. I'm glad to see your post -- it's part of that groundswell. But don't be too disheartened - there's incremental progress to be made, and you are helping.

Don't you think that the USA actually has the most aggressive judicial review and interventionist courts of common law countries?

Yes, it does.

But the US judiciary also has explicit doctrines (the most famous is Chevron) that give enormous deference agencies administering statues. That's what makes it uncharacteristically submissive against the administrative state while being pretty robust against actual legislation.

Other countries also allow parliaments to delegate a lot of their power to agencies, and courts are pretty timid about the delegation itself. But they do a more serious job of reviewing the agency decisions in the light of their enabling legislation. This is not some extraordinary activism, it's just common sense. It is America that has a weirdly deferential doctrine.

I'm not sure I agree with that sentiment. The student loan forgiveness plan for example which relies on an overly broad (but textual maybe) definition of what debt relief and emergency mean is likely going to be struck down by the courts. In other countries that plan likely goes through without interference from the courts.

In other countries that plan likely goes through without interference from the courts.

I'd be surprised. But it's more likely that governments would just pass legislation, since Parliaments are less independent of the executive. It's not 100% -- e.g. in Australia minor parties tend to have the balance of power in the Senate. But in general you don't see executive orders being used as an end-run around Parliament.

What you do see is ministers being granted enormously broad powers by existing legislation. These powers are broad enough that they don't need help from the judiciary to get away with acting arbitrarily. Although when they but up against the constitution, the courts might conveniently forget that the constitution exists.

I blame Woodrow Wilson for the administrative state, as I do for most other woes of the 20th Century.

It depends. It all goes back to that blasted footnote in carolene products (ie economic rights receive effectively no protections; political rights absurd amounts of protection)

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