[dmatech]

The major questions doctrine itself is a relaxation of strict separation of powers. Normally there is strict separation between lawmaking, judicial functions, and enforcement. MQD at least allows the "minor questions" to be exceptions. I know that a lot of people think separation of powers is inefficient and outdated, but it's still the law of the land.

[sanderjd]

I see the "major questions doctrine" the opposite way. I see it as a power grab by the judiciary to deign to decide that some things are too important to trust to the text Congress wrote into the laws they passed. The Court is telling Congress "you weren't specific enough when you wrote this law and the agency is taking advantage of your ambiguity, and we won't allow it". Instead, the Court should say, "what this agency is doing is plausibly within the bounds of this legal text due to its ambiguity".

If Congress would like to clarify, they are free to do so. The Court should not be saying "we believe this is too important of an issue for ambiguity to allow this action", they should only ever say "we believe this action is unambiguously in violation of this law".

(And FWIW, what I described is pretty much just what Chevron deference already is.)

[ryandrake]

> If Congress would like to clarify, they are free to do so.

Unfortunately, Congress is, and has been for a long time, nonfunctional. Besides routine reauthorizations and trivialities like renaming post offices, how often in the past 20 years have we seen actual, significant legislative action? What's legal and illegal today is roughly the same as what was legal and illegal back in the '90s, and it will probably be roughly the same in the 2050's. We've totally ossified and are incapable of meaningfully changing outside of judicial interpretations and "legislating from the bench."

[sanderjd]

> Unfortunately, Congress is, and has been for a long time, nonfunctional.

But that is, in my view, irrelevant to the question of whether the Supreme Court should or should not usurp their power.

[ryandrake]

Sure, but if we're saying they shouldn't, then we're saying that the law should just be frozen in time, essentially forever (but at least for the lifetime of anyone who is alive today). The last time that a single party had 1. a majority in the house and 2. >60% of the senate was 1979, and that's what it takes to pass anything besides routine, insignificant legislation. And thanks to gerrymandering and political entrenchment on both sides, I can't think of anything short of a war that could draw us out of the stalemate.

[sanderjd]

There are lots of things that could draw us out of the stalemate. Not all of the possibilities are good, but I can't think of any that are worse than ceding the legislative power to a committee of 9 people who are unelected and appointed for life.

For instance, if the current legislative system really is broken beyond repair, even a whole new constitutional convention would be a better very bad option than "the Court does all the legislating now".

And a better bad option than that would be for more things to be done via executive action and agency rule-making. The executive is at least subject to the peoples' will every few years.

But I don't think it's true that there is no way to make the legislature work. I think filibuster reform is the place to start. You're right that getting to 60 votes for every single piece of legislation in the Senate is an absurd requirement. But it is not true of every piece of legislation, and there are very recent success stories (the Inflation Reduction Act) of passing useful legislation through simple majorities of both chambers. I think just having that capability for more bills would go a long way. And it only requires a simple majority (and significant political backbone) to reform the filibuster. I think it will happen soon, as the legislative stalemate and rule-by-Court is an increasingly frustrating situation to the electorate, and not just for one side or the other.

And I don't think the stalemate in the House is actually a systemic problem. There are some rule changes at the margin that I think would be useful; decreasing the power of leadership in favor of the committees for instance. But the reason the house is dysfunctional right now (besides that the party in the majority is itself just very clownish at the moment) is that it is incredibly closely divided, reflecting an electorate that is itself very divided. The biggest improvement we could make to that would be gerrymandering reform, but even without gerrymandering, the House wouldn't have a large majority one way or the other. Even the national popular vote is consistently within 5 points each election. We just don't have strong political consensus at the moment, and the House reflects that, as it should. Legislating from the bench is the worst possible solution to that problem!