Failing to include such an explicit delegation renders agency action constitutionally suspect.ĭavid Cole, borrowing from the language of Dobbs, labeled those decisions “egregiously wrong” and called the 2021-22 term “unprecedented.” In his view, they exposed the bankruptcy of originalism as a method of constitutional interpretation.Īnother competitor for this year’s worst legal moment was the decision by Trump appointee, U.S. Under that doctrine, it is necessary for Congress to include a clear statement in the law that it intended to delegate authority to regulate a fundamental sector of the economy. It used an entirely made-up test, the so-called “ major questions doctrine.” In the EPA case, the Court limited agencies’ regulatory authority and set the stage for future attacks on the post-New Deal administrative state. Surprisingly even the Heritage Foundation recognized that Justice Clarence Thomas’s decision in the New York gun case (that the text of the Second Amendment protects the right to carry handguns in public for self-defense) rejected the use of “the prevailing framework for evaluating Second Amendment claims.” Instead, the Court held that “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” They include two Supreme Court decisions, New York State Rifle & Pistol Association v. While Dobbs is my choice as law’s worst moment of the year, there were others that I seriously considered for this dubious recognition. But surprising or not, it is still important to name the damage it did to countless millions of people and to the Court itself. The envelope please: the award for American law’s worst moment of 2022 goes to the United States Supreme Court for its decision in Dobbs v Jackson Women’s Health Organization.īecause law’s infamous rulings generally do not fly below the radar, it is hardly a surprise to name Dobbs, which has already been subject to withering criticism.
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