LBJ, a man with gargantuan appetites and ambitions
I stole this comment from a place from I read on a regular basis. An Incredible commentary.
Having grown up in that era, I felt it had merit and believe the commenter gets it right. The programs mentioned here are under attack by Republicans. SCOTUS is using nondelegation as the basis to dismantle programs. Congress did pass these programs, allocated funds to support the programs, and established the means for administration. A program can be stopped by eliminating funding. If Congress allocates more funding, in itself it is affirming the legitimacy of such program by delegating funding to it. Congress does have the ability to legislate and provide funding for the program. Both are matters of delegation.
I believe some of the Justices at SCOTUS are just plain wrong. I thought I would share it at Angry Bear and see what you thought.
“FDR, with the New Deal (First Hundred Days) and 2nd New Deal (1935) provided a basis for modern-day America at that time. LBJ, a man with gargantuan appetites and ambitions, sought to out do FDR with the Great Society.
Medicare, two monumental civil rights laws (he took tremendous personal satisfaction in accomplishing what JFK had failed to do), the Voting Rights Act of 1965, poverty programs, NEH, NEA, and hundreds of other transformative initiatives marked LBJ’s Great Society.
Johnson, whose ruthless political skills in Congress were superbly described in Robert Caro’s Pulitzer-winning MASTER OF THE SENATE, knew that he had a short window, after JFK’s assassination and his trouncing of Goldwater in 1964, to jam a panoply of far-reaching legislation through Congress.
This almost seemed like throwing massive globs of pasta at the wall to see what might stick. Johnson was in a legislative frenzy believing that ground-breaking legislation and a moderately open check book could transform the America society.
We are indebted for what President Johnson accomplished. By FDR’s rule of thumb (‘If I bat 70% with what I initiate, that’s pretty damned good’). Johnson scores well. The political push back caused by his Great Society steamroller came rather swiftly. As he noted, when signing his 1965 civil rights law, ‘We will lose the South for at least a generation.’
The Vietnam War proved his major political Achilles heel. Using his same Great Society overdrive in Vietnam, he escalated the war with phony claims (Tonkin Gulf Resolution), lying to the American people about ‘winning,’ and sending over 500,000 military where there was no light at the end of the tunnel.
It probably was as great a shock and personal humiliation for Johnson as his Watergate resignation was for Nixon, when Johnson announced in March, 1968 that he would not run for re-election.
On reflection, I give him poor marks on Vietnam (a Greek tragedy) and a vigorous shout out for his somewhat flawed, but still monumental Great Society. I wonder how the American society of the 21st century might have been transformed, if President Biden had been able to legislate a robust Build Back Better program?”
Yeah, I was interested until the last sentence. Pay no attention to the makeup of Congress, Biden needs to use Green Lantern’s Magic Ring fantasy.
i dunno. maybe he could use the 14th amendment to send in the troops to enforce laws against denying people the right to vote.
kind of like using the U.S. air force to stop Putin.
FDR did get “the switch in time that saved nine” by threatening to pack the Court. cost him points in the polls, but he got it done.
Ike (R.USA) sent in the troops to Little Rock, and got it done. I think the people put up with it, and the current anti-civil rights feelings are as much a result of our over reaching as it is the result of sixty years of plotting by the “they are stupid and they are few.”
Which is irrelevant to passing the BBB.. You know, the topic?
if BBB can’t, or perhaps shouldn’t, be passed then “sticking to the topic” means sticking in the mud.
i thought it was exactly on topic, but then i made my living by seeing beyond “the topic” to solve problems other people couldn’t.
Get off the cross, we need the wood.
have you tried using your head?
I think the author is paying attention to the makeup of Congress. From what I know of him, he is very cognizant of the makeup of Congress and the government.
Of course, I do not know what the 21st century may bring for the rest of the nation as I will run out of time. Think of what may have come to pass with the passage of BBB.
We have a rogue SCOTUS who is striking everything down that has not been legislated by Congress using nondelegation.
Changed my intro above to explain. I happen to believe that funding a program is affirmation of that program.
I share your belief that some at the Court are just plain wrong. Based on nothing more than their predispositions, they want to say that Congress cannot delegate discretionary decision making to administrative agencies which Congress has been successfully doing since Roosevelt’s effort to stack the Court produced the “decision in time to save nine” that reversed the Court’s succession of decisions voiding New Deal legislation. However, to deal with a “just wrong” court, the remedies are difficult to administer. They include Court packing, Congressional limitation of the Court’s jurisdiction, and refusal to enforce decisions (a la Andy Jackson) as well as some other things I haven’t thought of. The trouble with the enforcement issue is that the agencies need the courts to enforce the agencies’ decisions. The filibuster will probably prevent limiting the Court’s jurisdiction over agency decisions and there is probably not a majority for packing at this point. If the Court really goes all radical on the delegation doctrine, congressional action may be possible if enough harm is caused but we aren’t there yet.
Ironically, the Court that holds delegation is not provided in the literal language of the constitution, wields its own power to hold legislation unconstitutional without express authority in the constitution.
I am thinking along the lines of the passage of consideration by Congress to enact something is delegation. It should not be just a vote. Even if an act is passed by Congress, the act can still be blocked by withholding funding (consideration) and/or blocking the transfer of funding from another program in the same bill. That was how Repubs killed the Risk Corridor program of the ACA. The program was not funded in the ACA bill, Repubs were going to block appropriation of funding after the ACA was passed. And Fed Upton inserted Section 227 in the Crominbus Bill to block funding as taken from other programs.
I thought the argument was Congress not passing “legislation” to delegate authority to agencies.
“…without express authority in the constitution to hold legislation unconstitutional”
can we run with it? can we govern without it?
no one, except the court itself, has objected to it since John Marshall invented it
and we would not have roe v wade or brown v board without it
not that we exactly still have them today, but they did good in their time before the SC untied our shoelaces.
Well, blocking funding is done by Congress, not the Court. Thomas and his allies seem to believe that Congress can’t allow agencies to enforce the specifics of regulation without express provision of the specifics by Congress instead of allowing the agencies to do fact finding and drafting of regulations within general guidelines. Basically, those Justices don’t like regulation and are acting politically, a charge they like to level at “activist” Justices who do things like making up rights.
I would sense that much of this detail is already defined the same as it was in the Risk Corridor program. Funding was my point on Congress’s ability to not acts creating bureaus and also funding them to do a specific function. Yes there is fact finding which probably is defined by Congress also. These bureaus are done for a reason and I would guess typically defined the same as Risk Corridor.
Even if opposing SCOTUS, we would be blocked. Can Congress pass a law blocking SCOTUS?
As I understand it, the Court held that Congress could not block funding under the ACA risk corridors provision and the insurers could sue the government under the Tucker Act. I suppose Congress could repeal or amend that Act. Is that what you had in mind?
But Upton was successful in blocking funding from being borrowed from other programs in the Crominbus bill be it other ACA programs. The result was Coops going out of business, people in Coops losing healthcare insurance, higher premiums for those in those Coops when they went for other insurance elsewhere, and companies dropping from the ACA. Later on the courts decided for those companies which were left. The decisions arrived too late and Upton, Sessions, and Kingston walked away. Suing took a while to be decided.
It was my understanding; Congress could not delegate unless it legislated. And not so much what was in the Constitution specifically identified. In which case, the BBB was created by Congressional legislation.
Prior holdings were that the delegation could of an area (e.g. the SEC and securities regulation) but that the specifics of the regulations (to prevent monopolies, for example) would come from the agency under the provisions of the Administrative Rules Act (?) following notice of proposed regulations and hearings. Thomas and others seem to believe that the specific regulations have to be in the Congressional legislation.
I should add that it is sometimes called the judicial deference doctrine; deferring to the expertise of an agency to interpret the provisions of an ambiguous or, better perhaps, generalized statute. See Chevron v. Natural Resources, 467 U.S. 837 (1984). Thmas would reverse this holding.
Slow action in the courts is a whole other issue. This court is a problem for many reasons.
Unless it is on shadow docket and for Repubs. A you probably know. circuit courts have two years to decide which is why our Detroit one finally decided. A rule came down giving them two years. Every once and a while, I ask Erwin a question. He answers in brevity.
He knows the answer is probably political as opposed to legal. As a lawyer these days, one can simply grit one’s teeth and hope for the future.
He knows I am no danger. I always mention Craig first.
He publishes op-ed pieces in the LA Times occasionally.
When SCOTUS does something dumb, I go looking for his articles to see what he says about the issue.
We’ll all running out of time run, it’s in the algorithm.
“Having grown up …” They say hind-sight is 20/20, but I’m not sure it applies. I can’t imagine what my ~ the product of mid-fifties promiscuous pregnancy and sixties serial Southern California divorce, the bastard nobody wanted ~ life then would have been without Johnson and the Great Society. Might not have been all that different, can’t say. Could have been worse …
You all are much closer to the action than I am (so know more) but here is a “hail mary” play:
the Court, as now populated apparently for some time to come ,uses “original intent” or “specific language” [whichever is most convenient for their purposes..(in spite of specfic language in the Constitution itself that enumerated rights shall not be construed to deny rights not specifically enumerated)]] to prevent any advances…or even established gains…in social justice or simply managing a very large country … even as conditions have changed enormously from what the Framers ever imagined. The remedy for this…as the Court somewhat cynically points out… is Constitutional Amendment, which they know to be enormously difficult or practically impossible. So…. let us have a Constitutional Convention [anyway]! And enact an Amendment that specifically calls for non-enumerated Rights, liberal interpretation of (not “Liberal”) of powers necessary to manage a country and economy never imagined by the Framers, and…(and this is news to me)…specifically allowing for delegation of regulatory powers.
I am not seeing at this point how these things might bite us if not balanced against each other…where Rights of the people trump right to delegate, or “liberal interpretation” invites future Trumps to ignore the rights of people or the acts of Congress… but I am hoping we still have leaders somewhere who can manage to come up with careful language to defend human rights and allow the government to make rules and delegate authority necessary to manage a modern country and protect it from its enemies domestic and foreign.
not planted in fertile soil, but I thought it might be worth thinking about. Smart and honest leadership could make it happen… oh.
EM et al
my first comment on this thread acknowledged that you all [run and jack mostly] know more about the specific issues here than i do. my “hail mary” was meant to break the glass in case the real issue turned out to be the Supreme Court determination to stop the clock or reset it some time before the Revolution when times were good for the rich and well born.
Because the remedy I proposed was full of dangers that might get overlooked in the rush to follow my advice, i added a comment to point some of those dangers out.
EM found some of this “off topic.” I suggest no one here needs to read anything they find off topic.
I also took advantage of EM’s crack about getting off the cross to make a little joke at his expense. I hope he less thin skinned than some folk here, but the fact is that i keep intending to get off the cross anyway.
bye for now.
note on “off topic”
EM seems to think the topic is Build Back Better and Biden’s inability to pass it.
I have some sympathy for that because on rereading i was unable to tell what the topic was myself, or even who wrote what here? some names appeared… or maybe only parts of the same name?
I shrewdly deducted that the topic was the Supreme Court’s current failure to “follow the law” which they justify as “founders intent” or “lack of specific mention of Rights” or even normal government delegation of regulatory powers. both Jack and Run seem to be saying that the law specifically allows such delegation and provides a remedy for regulatory overstep. So I suspect I am agreeing with them and not off topic to suggest that we need to call the SC bluff and pass an Amendment that specifically mentions “rights not enumerated” and “delegation of rule making subject to congressional review.”
Hell, I even climbed down from my soap box (sorry EM, it’s something different from a cross. look it up.) and suggested other people smarter than me might have to write this amendment…if someone even smarter than them can get the current crop of politicians to let them.
You are like a little old lady at times. Stop . . . You had your say.