The Founding Fathers could not anticipate the complexities of the 21st century, and wanted to provide flexibility for the government to adapt. So they kept things fairly simple, but provided room for adaptation.
American law gradually adapted to the complexity of a developing society. American law remained rooted in our good-but-flawed Constitution, but adapted to handle the modern world.
The Founding Fathers did not anticipate, for example, how butchers, bakers, and farmers would evolve into the modern food industry. Along the way, our society recognized that the government needed to be involved in the food industry to ensure safety and transparency. The Constitution did not create a “Food branch” of the government or specifically grant 'food regulation' powers to the Federal government or the States. But the courts agreed that if the legislature passed a food safety law, there would need to be pragmatic systems to make that law into reality.
When wealth accumulated wildly in this country in the early 1900’s and the business and financial industries abused their enormous power, the people of America said “This sucks and we’re going to change it.” They used the great community tool called ‘democracy’ to create guardrails for the great community tool called ‘capitalism.’
Capitalism, while neat, has serious downsides. Americans used the power of democracy to manage those downsides. They broke up monopolies, imposed high tax rates on obscene levels of income, balanced the power of capital with the power of unions, limited the influence of money on politics, and protected the common good through regulatory agencies.
Over time, the US judicial system supported this essential structure of our democracy. There were huge struggles about this--including the struggle between the courts and FDR's New Deal policies. But the balance that emerged between capitalism and democracy is the one most of us grew up with.
When we say “It’s important to learn from history,” we usually imagine that the ‘good guys’ are the ones doing that learning. Unfortunately, the ‘bad guys’ learn from history as well.
There have always been bad guys with a ton of money and power. They always want more money and power, and they don't want to share. It is more apt to say that money and power have always had morally corrupting temptations that prey on individual human psychology in ways that are difficult for the rich and powerful to resist.
But American democracy was doing a pretty good job of restraining wealth and greed so that society’s gains were shared. The bad guys said “This sucks and we’re going to change it.” (Of course there was not some unified conspiracy, but many guys leaned into this 'problem,' and having done so makes them bad guys.)
They learned from history. They saw that in the first half of the 20th Century (1900-1950), democracy imposed some restrictions on the power of money, and then the court system gave those restrictions a stamp of approval. So the bad guys said, “We can chip away at the system by corrupting politics and changing things in our favor one bill at a time, but if we really want to turn the clock back, we have to use the courts.”
The bad guys literally funded the development of ideas that would undermine how our democracy functioned. We are now seeing their funded ideas come to fruition.
Originalism, per Wikipedia:
In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted.”
Originalism is a conceptual tool that is often used to claim that longstanding American legal norms are unconstitutional and illegal. Most Americans might think it is silly to suggest that Social Security is unconstitutional, or that the Department of Education is unconstitutional, or that the Environmental Protection Agency is unconstitutional. Originalism allows judges to ignore the last 50 or 100 years of political and judicial precedent.
Supreme Court justices have used originalism, for example, to argue that if a Constitutional amendment grants equal rights to citizens regardless of ‘sex’, that does not include sexual preference, because when the amendment was written, the writers probably didn’t have sexual preference in mind.
Textualism, according to Wikipedia:
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources...
Judges use textualism to undermine laws that were written imperfectly, or were written in ways that ‘did not age well.’ This happens all the time. It’s been in vogue with Supreme Court justices to point out one word in a law and quote the dictionary definition of that word as part of their judgment.
Historically, judges have used a number of sources to advise the meaning of the written law: Is there evidence in the legislative record about what the writers of the law were trying to do? When the law was debated in the Congress, what did they say? Did a consensus develop about what it was intended to mean? Textualism as a philosophy allows a judge to ignore the context and intention that may be obvious from a ‘common sense’ perspective.
Textualism also allows judges to cherry-pick. They can emphasize select words or phrases and disregard others. It’s a tool used to degrade laws that are already on the books.
The Nondelegation Doctrine, according to Wikipedia:
The doctrine of nondelegation (or non-delegation principle) is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself.
The real meaning of the nondelegation doctrine is that the Legislature, for example, cannot pass a law saying “From now on, the President can pass laws.” Likewise, the President cannot say “I authorize this department to make new laws.”
The bad guys realized that they can apply a fundamentalist version of the nondelegation doctrine to undermine the normal and reasonable function of government.
In the normal function of our government, the legislative branch passes laws, and the executive branch ensures that the law is realized. Judges are now using the nondelegation doctrine to say “Well, maybe the legislative branch did pass a law stating that the EPA can prevent toxic runoff. But the case we’re looking at now is not toxic runoff, it’s toxic sludge. This particular law says nothing about toxic sludge. The definition of runoff is that it drains away, and this sludge does not drain away, it just sits there. And therefore, if you want a law about toxic sludge, you have to get it passed.” (This is a made-up example, but it's honestly not that far off. See the June 2022 EPA decision.)
If the nondelegation doctrine is applied aggressively enough, it becomes impractical to regulate the modern world. Laws just can’t be specific enough or prescient enough to keep up.
During the pandemic, the Occupational Health and Safety Administration (OSHA) issued a rule that employers who require workers to be in close proximity must require workers to either get vaccinated or test for COVID regularly so that other workers were not put in jeopardy. The court struck down that law, stating that OSHA’s mandate to protect worker safety did not include protection from diseases that also exist outside of the workplace.
At the same time, the court upheld the CMS (Centers for Medicare Services) decision to require vaccination by health care workers in facilities that receive CMS funding, stating that yes, CMS has a specific interest in ensuring health in healthcare facilities. A reasonable person might think, “Yes, this case was pretty obvious, since it’s a health issue and these are healthcare facilities.”
But four of the court’s conservative members did not find it obvious. They dissented (disagreed). They said that even in this case, nondelegation applied: If the lawmakers had wanted healthcare workers to be vaccinated against a deadly disease as they worked in hospitals during a pandemic, the lawmakers would have said so explicitly. That is how you neuter a regulatory agency. One additional justice would have made that the majority opinion.
The point of the conservative court is not about coherent judicial philosophy: It's about undermining the Federal government, or in their words, "dismantling the administrative state." There is a system of agencies and policies that protect American citizens from being harmed--that's the 'administrative state' we're talking about.
The major questions doctrine, according to Wikipedia:
...questions of major political or economic significance may not be delegated by Congress to executive agencies absent sufficiently clear and explicit authorization.
I'll wrap this one up quickly: This 'doctrine' says that the more 'major' something is, the more explicit a law must be in order to apply. 'Major' is not a methodical logical test, it's a vibe. And in practice, anything that violates conservative sensibilities has been considered 'major' by the majority conservative court; anything considered progressive is just not that big a deal. Major impact to business is very, very major; major impact to consumers or the environment is not.
These are some of the legal theories that the bad guys have infused in conservative legal culture. All of these ideas have some connection to reality. Yes, the Constitution is foundational. Yes, words matter. Yes, government agencies should operate within limits. Yes, some things are broad-reaching and others more proximal.
But fundamentalist application of these ideas is out of step with common sense and undermines the proper functioning of a democratic government. That’s one way the bad guys are trying to prevent our government from serving the common good.
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