Comment by iamnothere
2 days ago
In a different legal environment this would be a good approach, but currently I don’t think the courts would accept this argument, as they are trying to push Congress to legislate rules on things like this (which Congress steadfastly refuses to do). Prior courts were more willing to “legislate from the bench” but current justices have expressed concern that Congress is abdicating its rulemaking responsibility.
That’s a hilarious idea. Given the Supreme Court of today, afraid of legislating from the bench? Are you serious?
Yes. The majority of their decisions seem to bear that out. While the current court isn’t run by strict constitutionalists, the direction of the court seems to be in favor of rolling back previous precedent that overstepped constitutional boundaries and restoring constitutional balances based on originalist interpretations. This doesn’t please anybody, of course, because both political “teams” have lost major fights in this process.
Not that every decision bears this out, of course, and it’s also a slow process.
IMO this restoration is a necessary step in restoring the operation of the constitution. As a country we need to decide if we’re going to actually follow it (including making use of the long-dead amendment process) or throw it out (amounting to a revolution). Selectively ignoring parts of it depending on who is in power, or based on whatever the bipartisan intelligence/defense agenda requires, is unworkable and needs to end ASAP.
Most of the contentious SCOTUS decisions these days are the opposite of that, where they defer to Congress or the executive.
Yes. Why do you disagree?