mtswMar 3, 2023
Walgreens is restricting sales of abortion pills because they (probably correctly) believe they're more likely to face consequences for defying conservatives than for defying liberals, despite liberals official control of the Presidency and Senate and nationwide popular majorities. Either use power yourself or watch your enemies use power instead! There's no alternative!
Show threadmtsw

Democrats have no instinct for exercising power after being trained for decades to work through the courts.

The courts are gone - taken over by our enemies who disdain the very concept of rule of law.

The only time Dems now manage to think creatively is coming up with reasons why other forms of exercising power would be problematic or impossible.

Mar 3, 2023 at 10:27pmWeb
Show threadS Bodzin, Real American 🇺🇸Mar 3, 2023
@mtsw the worst part is that some simple exercises of power could do a lot to bring back the courts — like making the Supreme Court a circuit where you get a random panel of Appeals Court judges on any given case.
Show threadScenarioMar 4, 2023
@mtsw @gwynnion Yep. And this will cost them votes.
Show threadjoeross⛅️meMar 4, 2023

@mtsw Fair point. I’ve been thinking about the #SCOTUS majority’s tendency to set aside texualism to implement their policy goals through the ::Inception gong:: Major Questions Doctrine. Enough MQD cases & they’ll be forced to either continue embracing it, & thereby gradually erode their preferred analytical paradigms, or they’ll phase out MQD, passing some power back to the Executive (not always good, I know) & maybe - MAYBE - motivating #Congress to write more precise #legislation.

#LawFedi

Show threadvolkrisMar 4, 2023

@joeross @mtsw

You have the backwards a bit. The major questions doctrine isn’t setting aside textualism but rather is a implication of the textualism of the Constitution.

Major questions doctrine is implied by textualism.

The Constitution separates powers, and the major questions doctrine is just about seeing how the powers interplay as per the text of the Constitution.

Show threadjoeross⛅️meMar 4, 2023

@volkris @mtsw We’ll have to disagree. It’s text text text until the text grants a breadth of power offensive to some jurists, then it’s MQD.

Congress writes laws for a living. It it could be more narrow with its language. It was not.

I’m not saying the law or Biden’s use of it are free from criticism.

But “waive” is a really broad word, and there’s no strong textualist case against the program.

Enter MQD, a way for SCOTUS to narrow a broad emergency power Congress gave to the Executive.

Show threadjoeross⛅️meMar 4, 2023

@volkris @mtsw To clear, I can entertain the idea that, as you say, MQD is implied by Constitutional textualism. I disagree with that, but it’s a good faith claim you’re making that I can see reasonable people, like us, disagreeing about.

My position is more a practical one: they don’t really deploy MQD against every overbroad Congressional grant of additional Executive power.

They deploy it where that power, or its specific use, offends conservative, rather than Constitutional, principals.

Show threadvolkrisMar 4, 2023

@joeross @mtsw

Well do you have examples of Supreme Court arguments where MQD might have been applied but wasn’t due to conservative preferences?

Off the top of my head I can’t think of one.

Show threadvolkrisMar 4, 2023

@mtsw

What examples do you have to support your claims here?

Show threadNjordMar 4, 2023
@mtsw Sadly true. There's almost no fight at all in the main Democratic party
Show threadSuperTwaddleMar 4, 2023
@mtsw or perhaps the more simple explanation is that they flatly don’t feel like it. They are an ethics-free fundraising org first and foremost.
Show threadMartha HowellMar 4, 2023
@mtsw
Well past time for them to figure out you can't win the game just with defense. Time to start scoring, and oh, when you do, this is how you tell people what you did:
Show threadRed FasterMar 8, 2023
@mtsw neoliberals don't actually care about anything though so it doesn't matter how much power they won't use