Does the FTC actually have the power to set rules like this effectively now that Chevron deference isn't a thing? I'd imagine e.g. the New York Times, among others, will quickly sue to stop this, no?
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SCOTUS' power/respect only goes as far as they're actually listening to the will of Americans. This is not representing Americans if they override. Same for abortion (just legality not anything about enforcement), same for presidential immunity.
We have expectations, and they do not align with SCOTUS, so SCOTUS is not a valid interpretive institution. "The Supreme Court has made their decision, let's see them enforce it."
And against my best judgement, I’ll add that in it was roe v wade itself that was essentially judges creating law (shoehorning abortion rights into a right to privacy is a stretch).
You call out yourself that the judges are essentially creating law. (presidential immunity and abortion both are just bonkers decisions based on thoughts and feelings). I think the only way to curb that from the supreme court is that the other governing body capable of action (see not congress) needs to remind SCOTUS that they've got finite power.
Do you have another alternative here? Maybe more ethics rules that SCOTUS doesn't have to follow? Wait for congress to impeach a sitting justice for corruption? Hopes and prayers?
Source ? Asking as a non American
It seems to me there are multiple understanding of the role of scotus in general and the inoperative rules of the constitution. "Explicitly not supposed to represent the will of the people" seems to be one perspective but not the only one.
Every constitutional democraty will have a tension between the constitutional and democratic part. And that tension will be felt in all of its institutiona
I disagree fundamentally, but this is where the textualists and others diverge. I absolutely believe our fundamental rights extend to the modern era.
The main difference is that now unelected judges decide how to interpret the law instead of unelected administrative officials. But that's what judges do.
What this is really about is that nobody wants to get blamed for what happens. So Congress passes purposely ambiguous laws and then deflects blame onto the courts for interpreting them one way or the other. The courts didn't like that so they said they'd defer to administrative agencies. It turns out the administrative agencies did like that, because they have almost no direct accountability and the only elected ticket in the executive branch has a term limit and frequently switches parties, so it was easy for them to participate in the revolving door and line their pockets.
Now the courts are going to go back to doing their job, so naturally now they get the blame for Congress passing ambiguous laws again, and the people profiting from the status quo are railing against it as if the courts are doing something wrong instead of doing what they ought to have been doing the whole time.
The problem is, they have to, to a certain point. All government institutions ultimately derive their power from the willingness of the governed to live by their laws. Most decisions are minor enough and stacked with enough legalese that the average American doesn't care, but when you have more and more decisions that are as far out of right-field as the recent court has been making and corrupt justices making those decisions, it erodes the willingness of people to live under those decisions as time goes on.
> (shoehorning abortion rights into a right to privacy is a stretch).
I mean, only if you want the government telling twelve-year-olds that they'll need to push a baby out of a pelvis that is not yet wide enough to safely give birth.
The idea of "privacy" in this context is that generally speaking, it's not the government's business what you do with your body while knowingly and consensually under the care of a doctor. That is private for purposes of what the government can tell you to do. Maybe "confidentiality" would be a better term for the court to have used, but it's not a completely weird term.
Yeah, but they could've overturned it if they didn't like it.
> The main difference is that now unelected judges decide how to interpret the law instead of unelected administrative officials. But that's what judges do.
This is a huge difference you kinda skip over. Should the policies and regulations of 100s of industries be decided by:
1. People who are only familiar with court proceedings 2. Experts in those industries with experience in those industries
One of those things is meaningfully worse, because we're going to get a ton of "armchair experts" on culture war issues who have no idea about what's happening on the ground, and just have their own culture-war opinion that ignores the nuance of the situation.
The question is if they could've passed it to begin with. There is nothing in the constitution giving Congress the power to delegate its lawmaking authority to the executive branch, much less deprive the courts of their interpretive role.
> Should the policies and regulations of 100s of industries be decided by:
> 1. People who are only familiar with court proceedings 2. Experts in those industries with experience in those industries
The first one is actually better, because it makes it harder for the industry to capture the decisionmakers. Meanwhile the experts are still in the court, they just have to argue their case before the judge instead of having the parties argue their case before the "experts" with a sack of cash.
The "modern era" part comes from the majority opinion of Roe, which notes that abortion was viewed in a much better light when the constitution was written. Anti-abortion sentiment is a fairly modern phenomenon.
“It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”
The "right to privacy" includes the right to medical privacy and privacy over your body. It's not the government's concern to dictate what and how you can treat your own body. The natural extension being that it violates the 14th Amendment for the government to surveil intimate medical decisions.
In terms of the history I have not dug into it but there seems to be conflicting arguments based on your priors. It doesn't seem cut and dry enough to just say it was a right then so it is now, if it was why not just do that instead of the whole privacy deal?
From Dobbs majority opinion: "English cases dating all the way back to the 13th century corroborate the treaties' statements that abortion was a crime."
I am also skeptical of origionalism. I don't know how much bearing 13-18th century common law should have on modern day law, especially when there was assuredly a diverse set of opinions on abortion just like today. Why shouldn't the 20th century have the same amount of weight as the 18th?
To me it seems that even if you believe abortion is morally right Roe was legislating from the bench. These things should come from congress not the supreme court.
An unborn fetus has never been granted rights in our constitution or anywhere else. It does not have personhood. There is only then one person here: the owner of the body.
> Abusing your spouse
This doesn't work, because your spouse has personhood and therefore rights.
To be clear, this has never been solved by any courts in the US. We still do not consider the unborn to be American citizens with individual personhood. The Supreme Court decided that's hard, so they just didn't do it when Roe was overturned. They essentially "carved out" an exception to privacy for exactly one-use case - Abortion.
You can certainly drink while pregnant. You can certainly smoke while pregnant. Because that is your body and your right, and you are exactly one person. None of that has changed from a legal standpoint. Now, you are one person with every right to privacy... except one.
I think, if you wish to ban abortion, you have to start at the core issue - who is considered a person, and who isn't? WHEN does an arrangement of cells become coherent enough to be considered a person? The reason nobody wants to answer this is because it's very hard, and there's a lot of unfortunate implications.
Then the Supreme Court "cheated", in my opinion.
> These things should come from congress not the supreme court
They already did come from Congress, when Congress passed the 14th amendment, in my opinion.