Week-end Wrap – Political Economy – January 16, 2022
by Tony Wikrent
Strategic Political Economy
[Twitter, via Naked Capitalism 1-10-2022]
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Heather Cox Richardson, January 14, 2022 [Letters from an American]
Yesterday, by a vote of 6 to 3, the Supreme Court struck down the Biden administration’s requirement that businesses with more than 100 employees address the coronavirus pandemic by making employees either get vaccines or, if they choose not to be vaccinated, to test weekly and wear a mask at work….
In his opinion, Gorsuch explicitly raised the concept of the “nondelegation doctrine” and the related concept of the “major questions doctrine.” The nondelegation doctrine relies on our government’s separation of powers. It says that, as its own branch of government, Congress cannot delegate regulatory authority to the executive branch, where agencies like OSHA live.
But, since Congress has, in fact, been delegating authority to the executive branch since the administration of President George Washington, those who want to reduce federal authority sometimes rely instead on the more limited major questions doctrine, which says that although Congress can delegate minor authority to administrative agencies, it cannot delegate major questions (although just how to define a major question is unclear).
A recent study by University of Southern California professor of public policy Dr. Pamela Clouser McCann and University of Michigan professor of social science Dr. Charles R. Shipan, both experts on intergovernmental delegation, found that 99% of today’s federal laws involve delegation. Unwinding them and requiring Congress to make all its own regulatory decisions would paralyze the modern government.
Those who support the idea of nondelegation argue that it guarantees government by the people rather than by an unelected bureaucracy, and this is a worthy thought. But unfortunately, it depends on the goodwill of those elected to state legislatures, and because those lawmakers also get to decide who votes in their states, that goodwill can be thin on the ground.
At heart, this is the same states’ rights argument that the U.S. has grappled with since the 1830s. Since that time, while some state legislatures have used their power to reflect the will of the people, others have limited the vote, putting a small group of people into power. Once in power, they have used the state government to promote their own interests. States’ rights advocates have consistently said that any federal interference with a state’s unfair laws is tyranny…
Since the 1930s, though, lawmakers have used the federal government to combat unfair state laws. They have regulated businesses when state lawmakers wouldn’t, protected civil rights from discriminatory state laws, and, ultimately, guaranteed the right to vote in states that kept their citizens from the polls, with the expectation that if everyone could vote, they would, indeed, create state governments that reflected the will of the majority..
TW: “lawmakers have used the federal government to combat unfair state laws.” In other words, guarantee to each state a [civic] republican form of government.
Harold Meyerson, January 13, 2022 [The American Prospect]
For a bunch of jurists who claim to adhere to textualism, the six Court right-wingers gave no indication that they’d actually read the act that established the Occupational Safety and Health Administration (OSHA), which was signed into law by left-winger Richard Nixon. That law gives OSHA the authority to protect workers “exposed to grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.”