Is The New Deal Unconstitutional?

Well, duh—the obvious answer is YES. But that hasn’t been a winning argument in the Supreme Court since 1935 unfortunately.

In the aftermath of the leaked Dobbs opinion, the left has been in a panic about what other “rights” the Supreme Court might take away, like the right to same sex marriage, inter-racial marriage, contraception, and watching European soccer in the middle of the night.

The left lacks imagination, and apparently an overabundance of paranoia only takes you so far. Our favorite working satirist (now that Ammo Grrrll is retired from standup), David Deeble (I’m tempted to call him Ammo Guuuyy just to have a matched set) has written over at Ricochet breaking news about a new leaked Dobbs draft that repeals the New Deal:

A leaked version of what appears to be the final draft of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health goes further than the original draft leaked on May 2. In addition to striking down the Roe precedent, the court also abrogated the New Deal signed into law by President Franklin D. Roosevelt. . .

The majority ruling surprised many court watchers by even addressing the New Deal, let alone striking it down in its entirety. “This court has been living a lie for nearly a century” the Alito-authored final draft begins. The opinion goes on to say that the Supreme Court will “no longer uphold blatantly unconstitutional laws simply because of cheap threats of court-packing from the Executive.” The ruling also added that any president or Congress that attempts to follow through on such threats can “suck it.”

Concurring in a separate opinion, Justice Clarence Thomas added “The federal income tax? Gone. The National Labor Relations Act? On the ash heap of history. The Security and Exchange Commission? Buh bye.” Economists estimate that making Fanny Mae alone disappear will allow the government to pay off the national debt decades sooner than previously thought.

Works for me.

But maybe this isn’t so far-fetched? About the Securities and Exchange Commission mentioned in David’s last paragraph here, yesterday the Fifth Circuit Court of Appeals issued a ruling in a case brought against the SEC in which the appeals panel, by a 2 – 1 vote, ruled that the SEC’s scheme of administrative law judges is an unconstitutional violation of the principle of the separation of powers:

Congress unconstitutionally delegated legislative power to the SEC by failing to provide an intelligible principle by which the SEC would exercise the delegated power, in violation of Article I’s vesting of “all” legislative power in Congress. . .

The ruling also held that the SEC, in assigning an enforcement action to its own internal administrative law judges instead of an Article III court, violated the petitioner’s 7th Amendment right to trial by jury.

We reported here back in 2015 about how the SEC wins cases at a much higher rate when it brings them through its own internal judges than through independent Article III courts:

The SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year, according to the Journal analysis. That was markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.

Oh what a surprise. No wonder the SEC prefers its own in-housebroken judges.

This 5th Circuit ruling seems designed to provoke a Supreme Court review, and the left woke up this morning to a new reason to panic. Start with Vox:

A wild new court decision would blow up much of the government’s ability to operate

The United States Court of Appeals for the Fifth Circuit issued yet another astonishing decision on Wednesday. Jarkesy v. SEC seeks to dismantle much of the system the federal government uses to enforce longstanding laws and to determine who is eligible for federal benefits. And it does so in defiance of numerous Supreme Court decisions that should bind lower courts.

The Jarkesy decision claims that the system the Securities and Exchange Commission (SEC) uses to enforce federal laws protecting investors from fraud is unconstitutional for at least three different reasons; that it has been unconstitutional for years; and that somehow no one has noticed this fact until two particularly partisan judges, taking liberties with existing law, discovered these defects in the Jarkesy case.

If [the] decision stands, it could throw much of the federal government into chaos.

That last sentence warms me up as much as the first sip of a peaty single malt.

Bloomberg is even more panicky:

RIP, the Administrative State

A lot of the modern protections Americans take for granted, from food and water that doesn’t constantly make us sick to a financial system not entirely built on rolling Ponzi schemes, result from regulations put in place by government agencies. Legal wonks call this the “administrative state,” and it is a relatively new construct. . .

This is a major win for the throwback crowd and could be a sign of more to come, . . . especially with potentially five or more sympathetic justices now on the Supreme Court. We may still be a long way from rolling Ponzi schemes. But the whole raison d’etre of the SEC — not to mention the EPA, FDA, OSHA, you name the acronym — is suddenly in doubt, along with that golden age of safety.

This is ridiculous of course, but even if the judiciary did go this far, it would only mean that Congress might actually have to work a full five days a week, and work harder at writing constitutionally valid statutes rather than appear on TV and make speeches all the time.

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