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Dameius posted:It's judicial activism with a cosplay theme. messianic jurisprudence
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Jan 29, 2023 07:01
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jeeves posted:Originalism counted a large population of this country was only 3/5ths human so maybe being super racist is a core part of their entire thing? Originalism is more the original meaning of the amendments so the Reconstruction amendments supersede the old poo poo and then they interpret those amendments (often wrongly) by their "original meaning". Though I'm sure there are cases where originalists ignored the Reconstruction amendments in some ruling or another for the reason you said. HootThe Owl beat me to saying it's them trying to put a supposedly objective veneer over their personal beliefs - Heller being a prime example.
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Jan 31, 2023 19:34
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Groovelord Neato posted:Originalism is more the original meaning of the amendments so the Reconstruction amendments supersede the old poo poo and then they interpret those amendments (often wrongly) by their "original meaning". Though I'm sure there are cases where originalists ignored the Reconstruction amendments in some ruling or another for the reason you said. HootThe Owl beat me to saying it's them trying to put a supposedly objective veneer over their personal beliefs - Heller being a prime example. I am pretty sure Originalism now means "the Bible" to at least a third of the current lifetime appointments to the court.
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Jan 31, 2023 20:09
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jeeves posted:I am pretty sure Originalism now means "the Bible" to at least a third of the current lifetime appointments to the court. Quick someone sue against charging interest for loans being unconstitutional according to Originalist readings to forgive all student loan debt.
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Jan 31, 2023 20:24
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Oracle posted:Quick someone sue against charging interest for loans being unconstitutional according to Originalist readings to forgive all student loan debt. "the Bible" in America will always mean "what I imagine the Bible says" not what it actually says.
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Jan 31, 2023 20:43
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See also: the Constitution
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Feb 1, 2023 17:37
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Welp, our favorite judge representing the great state of Texas, and therefore the entire country, has been handed a lawsuit trying to override FDA approval of mifepristone. https://slate.com/news-and-politics/2023/02/abortion-pill-outlawed-single-judge-real-possibility.html -- The plaintiffs are anti-abortion medical associations joined by anti-abortion doctors. Their claim is that some future patient might take mifepristone, suffer a rare side effect, then come to their practice for help, and that would qualify them for relief in federal court. But this claim rests on multiple layers of speculation and contingencies, exactly the kind of hazy conjectures that do not establish standing. -- The plaintiffs’ substantive arguments are ridiculous. They accuse the FDA of fast-tracking mifepristone (in 2000) and ignoring potential adverse reactions. What they are doing here is effectively disputing the conclusions of the agency’s scientists. Yet the FDA compiled a voluminous record over the more than two decades since approval justifying every single decision it has made about the drug, and fulfilling all of its legal obligations. -- This issue of authority and expertise leads to the suit’s third flaw: Never before has a federal judge imposed a ban on a particular drug by wholly revoking FDA approval. That is what the plaintiffs demand, yet it is an unprecedented step that would radically disrupt the entire existing health care system. The plaintiffs want Kacsmaryk to outlaw mifepristone in every state, abruptly halting doctors’ ability to prescribe the drug.
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Feb 7, 2023 07:56
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Does anyone know what the big decisions likely to be coming down the pipe this summer will be?
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Feb 7, 2023 08:13
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pencilhands posted:Does anyone know what the big decisions likely to be coming down the pipe this summer will be? A continued march towards theocratic fascism. e: love to see the right continue to shop their lawsuits in a way everyone knows ensures they get the rulings they want and that nobody ever challenges the illegitimacy of the judiciary. Evil Fluffy fucked around with this message at 16:13 on Feb 7, 2023 |
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Feb 7, 2023 16:09
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pencilhands posted:Does anyone know what the big decisions likely to be coming down the pipe this summer will be? The one that will get the most press is the student debt relief decision. Assuming the justices find a spurious reason to sidestep the standing issue (they will), expect them to kill the plan based on "political question" doctrine. There is also the same loving Colorado baker who is always getting up to Courts of Appeal that has an interesting but probably not very wide-ranging decision coming down about private businesses and protected classes. Otherwise, unless I missed a breakdown somewhere, nothing else that's set to upend society.
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Feb 7, 2023 17:41
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Umm what happened to that one “state legislatures can pick what happens in elections regardless of voter results” thing? My brain doesn’t want to think about it so I’ve completely forgotten the case name for my own mental health. I’m pretty sure that is a huge one on the horizon.
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Feb 7, 2023 17:46
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pencilhands posted:Does anyone know what the big decisions likely to be coming down the pipe this summer will be? the Section 230 thing i posted earlier matters a lot for tech policy if anything changes, or even to a lesser degree if it doesn't, since it hasn't been brought up at SCOTUS ever before and there's no precedent around it it's even a mystery how the votes will fall since it's not really an ideological issue that will obviously cleave to the common left/right split
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Feb 7, 2023 17:51
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jeeves posted:Umm what happened to that one “state legislatures can pick what happens in elections regardless of voter results” thing? My brain doesn’t want to think about it so I’ve completely forgotten the case name for my own mental health. The primary impact of that case will basically just be to say that state legislatures have a constitutional right to gerrymander and cannot be stopped by any state-level means. Not great, but not catastrophic either.
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Feb 7, 2023 18:39
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jeeves posted:Umm what happened to that one “state legislatures can pick what happens in elections regardless of voter results” thing? My brain doesn’t want to think about it so I’ve completely forgotten the case name for my own mental health. They already can. Not after an election and they still can't with this case, but the state can already cancel an election and just pick electors. This is mostly about gerrymandering and it could backfire badly on the gop since it's mostly blue states being restricted by state laws. California and New York could start redrawing immediately for 2024.
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Feb 7, 2023 18:48
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The Court is going to be killing Affirmative Action this year, after it was narrowly avoided a few years ago when Scalia died
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Feb 7, 2023 19:03
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killer_robot posted:This issue of authority and expertise leads to the suit’s third flaw: Never before has a federal judge imposed a ban on a particular drug by wholly revoking FDA approval. That is what the plaintiffs demand, yet it is an unprecedented step that would radically disrupt the entire existing health care system. The plaintiffs want Kacsmaryk to outlaw mifepristone in every state, abruptly halting doctors’ ability to prescribe the drug. Why would this judge's decision apply national and not just in the 5th circuit?
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Feb 7, 2023 19:03
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Moritastic posted:Why would this judge's decision apply national and not just in the 5th circuit? The issue is that there is no regional or circuit-based FDA approval process. It is a nationwide thing managed by a federal agency. The FDA says "this drug is approved," and then here comes a circuit judge saying "I revoke your approval." It's absolutely insane, unprecedented, and either creates a situation where the FDA has no jurisdiction in certain court circuits because the courts become the arbiter of drug approvals. It's not "we ban abortion pills in TX" but "we overrule the approval," which is a whole different can of worms. Am I approved? How can I be approved nationally but not in the 5th circuit? What does this do to my supply chain? Does the FDA approval process even mean anything if we've decided that an unrelated branch of government can overrule its approvals?
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Feb 7, 2023 19:24
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Sundae posted:The issue is that there is no regional or circuit-based FDA approval process. It is a nationwide thing managed by a federal agency. The FDA says "this drug is approved," and then here comes a circuit judge saying "I revoke your approval." It's absolutely insane, unprecedented, and either creates a situation where the FDA has no jurisdiction in certain court circuits because the courts become the arbiter of drug approvals. It's not "we ban abortion pills in TX" but "we overrule the approval," which is a whole different can of worms. Am I approved? How can I be approved nationally but not in the 5th circuit? What does this do to my supply chain? Does the FDA approval process even mean anything if we've decided that an unrelated branch of government can overrule its approvals? Double-post, but let's take this to the rest of the way it can go: What happens when an anti-vaxxer group gets a sympathetic anti-vax judge to revoke approval of the measles vaccine because of debunked autism horseshit? What happens when some "god will prove healing" turd in Oregon sues to revoke approval of antibiotics? How does any drug maker at any scale produce and distribute drugs when any loving idiot anywhere can find a sympathetic court to undo the regulatory process?
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Feb 7, 2023 19:34
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Main Paineframe posted:The primary impact of that case will basically just be to say that state legislatures have a constitutional right to gerrymander and cannot be stopped by any state-level means. Not great, but not catastrophic either. This pretty catastrophic considering the number of states they control and that they could gerrymander states like Virginia to give themselves permanent control over state legislatures that they'll also transfer the governor's power to like they did in Wisconsin to ensure if a Dem wins statewide it won't matter. Sundae posted:Double-post, but let's take this to the rest of the way it can go: What happens when an anti-vaxxer group gets a sympathetic anti-vax judge to revoke approval of the measles vaccine because of debunked autism horseshit? What happens when some "god will prove healing" turd in Oregon sues to revoke approval of antibiotics? How does any drug maker at any scale produce and distribute drugs when any loving idiot anywhere can find a sympathetic court to undo the regulatory process? Hello and welcome to the GOP death cult's long term goals of Government Bad. If (when) this shopped-for judge issues a ruling that the drug is now banned or w/e, the proper response would be for the FDA and Biden to say "nah, gently caress your judicial activism I'm going to pardon anyone who continues to make and sell the drug" and force a long overdue reckoning but Biden, like Obama, is perfectly content to kick the can down the road and off the cliff instead so he'll probably make some worthless statements about it and then do nothing of substance. Evil Fluffy fucked around with this message at 19:45 on Feb 7, 2023 |
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Feb 7, 2023 19:42
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Sundae posted:The issue is that there is no regional or circuit-based FDA approval process. It is a nationwide thing managed by a federal agency. The FDA says "this drug is approved," and then here comes a circuit judge saying "I revoke your approval." It's absolutely insane, unprecedented, and either creates a situation where the FDA has no jurisdiction in certain court circuits because the courts become the arbiter of drug approvals. It's not "we ban abortion pills in TX" but "we overrule the approval," which is a whole different can of worms. Am I approved? How can I be approved nationally but not in the 5th circuit? What does this do to my supply chain? Does the FDA approval process even mean anything if we've decided that an unrelated branch of government can overrule its approvals? From a legal perspective it seems to me that it would honestly be more sane to say "the FDA is unconstitutional and is hereby abolished" than to give every circuit court judge in America line-item veto power over a regulatory agency.
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Feb 7, 2023 19:55
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eSports Chaebol posted:From a legal perspective it seems to me that it would honestly be more sane to say "the FDA is unconstitutional and is hereby abolished" than to give every circuit court judge in America line-item veto power over a regulatory agency. This is also 100% acceptable to Republicans. And applies to every agency.
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Feb 7, 2023 19:58
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Evil Fluffy posted:This is also 100% acceptable to Republicans. And applies to every agency. It’s not a result that the court can grant though. The constitution gives the executive branch the power to see that the nations laws are upheld. The FDA is a natural extension of that authority. The courts can not countermand another branch of government’s constitutional authority because those are both equal levels of authority, that’s separation of powers. The court would have to say congress doesn’t have the power to pass the laws that say that food and drugs are regulated. This would be the equivalent of saying that congress can not regulate interstate trade which is a power expressly granted to it in the constitution. I don’t think any of this is plausible.
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Feb 7, 2023 23:41
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Murgos posted:It’s not a result that the court can grant though. The constitution gives the executive branch the power to see that the nations laws are upheld. Well here's the scary part: Judges reach implausible conclusions using implausible logic all the time. And if they can't abolish [agency] summarily, they will do it in effect in piecemeal fashion.
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Feb 7, 2023 23:51
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Murgos posted:It’s not a result that the court can grant though. The constitution gives the executive branch the power to see that the nations laws are upheld. Literally they just ruled that a constitutional right of privacy doesn't exist because of 16th century dudes existing, and that undercuts like half the bill of rights. The mask is off plausible doesn't really matter.
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Feb 7, 2023 23:56
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Murgos posted:It’s not a result that the court can grant though. The constitution gives the executive branch the power to see that the nations laws are upheld. That's why this is so insane to me. Congress explicitly established the FDA. It created the Code of Federal Regulations to govern the approval process. The process was followed and went through the FDA's advisory and review board per process. The FDA approved the drug. Twenty years later, along comes Judge Chucklefuck who says "yeah no, I'm revoking your approval somehow, even though there is a system in place established by another branch of government that describes how this process is performed." This is actually a crazier lawsuit, on its face, than the poo poo saying the EPA isn't allowed to make its own rules, or that any rules an alphabet-agency forces people to follow have to be passed by congress as laws. This is technically saying "I interject myself into that process and undo the result of it as a superior arbiter to the FDA's approval process." It leaves the process in place but fucks with the outcomes in a way that allows anyone anywhere to gently caress with them. I could theoretically go find a sympathetic judge somewhere and repeal the approvals on Sildenafil Citrate, using this case as precedent if it ended like this. This case, if ruled on by the judge to revoke approval of mifepristone, will 100% go to SCOTUS. There's no way around that, because it breaks the entire medical approval system otherwise.
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Feb 7, 2023 23:58
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Murgos posted:It’s not a result that the court can grant though. The constitution gives the executive branch the power to see that the nations laws are upheld. Perhaps you should actually look at the court's major decisions over the past several decades. Also "Congress doesn't have the power to create an agency that regulated food and drugs and has to do it themselves" is absolutely a belief among the right. They aren't exactly quiet about the desire to destroy the administrative state even though it would cripple the US almost immediately. The problem is then compounded by the fact that the legislative and executive branches, when faced with judicial overreach, just go "oh ok I guess that's that" instead of telling the judge(s) in question to gently caress off or, even more unlikely, remove their asses from the bench.
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Feb 7, 2023 23:59
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Sundae posted:That's why this is so insane to me. Congress explicitly established the FDA. Also the Voting Rights Act and welp.
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Feb 8, 2023 00:00
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Murgos posted:The court would have to say congress doesn’t have the power to pass the laws that say that food and drugs are regulated. Aren’t you describing Chevron deference, though, which many believe could be struck down in the near future? They could easily declare that drug approvals are laws that have to be voted on by both houses of Congress rather than just the FDA board or however it works today
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Feb 8, 2023 00:03
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If they abolished the FDA wouldn't that allow mifepristone since the agency that tells companies that they can or can't sell certain drugs would no longer be able to restrict anything? Like before the FDA you could just sell heroin and antifreeze to people as cough syrup
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Feb 8, 2023 00:07
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haveblue posted:Aren’t you describing Chevron deference, though, which many believe could be struck down in the near future? They could easily declare that drug approvals are laws that have to be voted on by both houses of Congress rather than just the FDA board or however it works today quote:If they abolished the FDA wouldn't that allow mifepristone since the agency that tells companies that they can or can't sell certain drugs would no longer be able to restrict anything? That would at least be legally consistent though stupid. This case appears to be saying that the existing law is law, but that the judge can (with statute of limitations) decide later that the FDA's approval is revoked, making themselves uncertain arbiters of drugworthiness and undermining a process that is still in place. This ruling would still require that I apply for FDA approval before I could sell a drug, but it would make it unclear whether their approval actually means anything. Their rejection would still count, but a court could intervene and undo the approval in any sympathetic jurisdiction, because my drug is likely to be sold in any jurisdiction and therefore you'll always find some form of fake standing. This ruling would say "you still need an approval to sell the drug, but the approval you got is no good because I said so, even though the decision isn't in the judicial branch."
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Feb 8, 2023 00:09
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VitalSigns posted:If they abolished the FDA wouldn't that allow mifepristone since the agency that tells companies that they can or can't sell certain drugs would no longer be able to restrict anything? That ends with them stepping in at the state level to stop abortions and provide a fresh crop of desperate child wage slave miners
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Feb 8, 2023 00:37
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haveblue posted:Aren’t you describing Chevron deference, though, which many believe could be struck down in the near future? They could easily declare that drug approvals are laws that have to be voted on by both houses of Congress rather than just the FDA board or however it works today Chevron’s different. Chevron is “if Congress’s law granting an agency power is ambiguous, we defer to agency interpretation of that ambiguity unless its a totally crazy interpretation”. While I think that’s a *good* approach, it’s not insane or implausible to say that the courts only owe the agency the deference that their logic deserves. The argument you’re referring to is a strengthening of the non-delegation doctrine, which allows courts to say Congress can’t delegate its powers to another branch of government (the executive) unless they give them adequate guidance as to how to execute those powers. While this isn’t crazy in and of itself - Congress abdicating its role entirely isn’t good! - it’s easy to see how you could extend that logic to invalidate any agency action you didn’t like just by saying it was an impermissible delegation.
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Feb 8, 2023 00:44
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This is the FDA lawsuit: https://adflegal.org/sites/default/files/2022-11/Alliance-for-Hippocratic-Medicine-v-FDA-2022-11-18-Complaint.pdf It’s… something. quote:First, the FDA never had the authority to approve these drugs for sale. In 2000, the FDA approved chemical abortion drugs under 21 C.F.R. § 314, Subpart H (Subpart H). This regulation authorizes the FDA to grant “accelerated approval” of “certain new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments.” 21 C.F.R.
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Feb 8, 2023 01:43
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Harold Fjord posted:That ends with them stepping in at the state level to stop abortions and provide a fresh crop of desperate child wage slave miners Funny that you mention that.
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Feb 8, 2023 01:45
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hobbesmaster posted:This is the FDA lawsuit: https://adflegal.org/sites/default/files/2022-11/Alliance-for-Hippocratic-Medicine-v-FDA-2022-11-18-Complaint.pdf The GOP solution to insulin prices: declare that type 2 diabetes legally does not exist
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Feb 8, 2023 01:53
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BTW, the two drugs they’re suing over are mifepristone and misoprostol. mifepristone is also approved as: quote:--------------------INDICATIONS AND USAGE------------------- Same dose. And for misoprostol: quote:INDICATIONS AND USAGE They mention these approved indications once as an indication of how unsafe the drugs are in pregnancy but this seems to kind of make the entire matter moot, no? Well, I guess they’re suing to remove an indication for the drugs?
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Feb 8, 2023 02:06
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hobbesmaster posted:BTW, the two drugs they’re suing over are mifepristone and misoprostol. Sounds like it's time to sue in a sympathetic jurisdiction to return sildenafil citrate to only being used for pulmonary hypertension. Not that boner pills and abortion should be treated as equivalent, but 
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Feb 8, 2023 02:11
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I'm confused by this thread commentary; courts have been able to rule on agency administrative actions forever. While the particular suit is ludicrous, the basic grounds and idea of suing over a particular finding (including the approval of individual drugs) isn't new.
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Feb 8, 2023 03:16
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Discendo Vox posted:I'm confused by this thread commentary; courts have been able to rule on agency administrative actions forever. While the particular suit is ludicrous, the basic grounds and idea of suing over a particular finding (including the approval of individual drugs) isn't new. We are expecting them to dramatically overreach, given the composition.
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Feb 8, 2023 03:33
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Harold Fjord posted:We are expecting them to dramatically overreach, given the composition. To continue* to dramatically overreach.
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Feb 8, 2023 04:11
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