The Supreme Court just made an incredible power grab

The court’s majority opinion signals that this Supreme Court is poised to strike down an undisclosed segment of federal regulations that don’t follow express, detailed authority from Congress. And even more troubling, the court’s conservatives have apparently determined that Congress may do so only if the subject matter of the law implicates what the court deems a “major question,” a nebulous and undefined term that has no textual support in the Constitution. Because our polarized Congress is shockingly dysfunctional when it comes to substantive policy, it doesn’t bode well for the country’s legislative needs.

So, there’s a looming Supreme Court threat to the viability of federal regulations as the ongoing bread-and-butter means of passing laws that span virtually every aspect of American life, from workplace safety and environmental protection to financial regulation and national child welfare. And these government actors aren’t elected or susceptible to losing their jobs at the ballot box. If a new threat to human health arises that affects workers by the millions, then Congress better have predicted the specific threat in the legislation enabling an agency to deal with it — or get its act together and pass actual emergency legislation under Article I. Of course, the horrors and unknowns of Covid-19 belie the feasibility of this option. The court is essentially saying, “Unless the states step in to address the next epic pandemic, you’re on your own, folks.”

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