The recent SCOTUS decisions on vaccine mandates, gun regulation, abortion, and the EPA are flawed from a strict constructionist perspective. Rather than striking down 20th century theories underpinning decisions which unconstitutionally expanded the powers of the executive branch and the federal government in general, respectively, the Court instead tried to set limits to the ways in which those doctrines could be applied.
Still, insofar as these decisions represent a change in direction, rather than the last word on these issues, they may provide a roadmap out of the political acrimony that is tearing American society apart.
The legislative power
In ruling against President Biden’s vaccine mandates and the EPA’s “Clean Power Plan,” the Court makes reference to a long-ignored principle called the “nondelegation doctrine,” which posits that Congress has no authority under the Constitution to delegate its legislative power to the executive.
In other words, when the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” it means no legislative powers are vested in the executive.
Strictly applied, this principle would mean striking down the New Deal, root and branch. Although there were examples of limited rulemaking by executive branch regulatory agencies prior to the 1930s, it was FDR’s coup that created and empowered to legislate the myriad “alphabet soup agencies” within the federal government.
Rather than such a radical change, the Court merely set limits to how far beyond legislation passed by Congress and signed into law by the president regulatory agencies can go in making legally enforceable rules themselves.
The “glass half empty” way to look at this is that the Court has further established that the executive branch can legislate – just “not too much.” The opposite view, as expressed by constitutional scholar Kevin Gutzman, is that these precedents represent the first indications of the Court turning away from 84 years of bad precedent and back towards a constitutionally limited government.
(For my discussions on this subject with Gutzman, see Episodes 1, 28, and 94 of Tom Mullen Talks Freedom).
The significance of this question cannot be understated. Garet Garret called the New Deal a “revolution” for good reason – it effectively transformed the U.S. government from its previous republican form to a new, soft form of fascism, with an executive branch issuing fiat commands instead of a legislature representing a diverse constituency writing laws.
They will hate you if you refuse to let them rule you. They will hate you if you don’t let them plan your life, spend your money and run your business. They will hate you if you don’t let them “educate” your children. They will hate you if you pursue your own happiness, encouraging your fellow men and women to do the same.
In the wake of yet another mass shooting in a public school, a host of familiar recommendations have resurfaced about how to “prevent this from ever happening again.” Predictably, both conservatives and liberals are looking to the government for a solution. Americans have somehow arrived at a point where they cannot conceive of human action that is not either prohibited, mandated, or, at the very least, centrally planned.
Just when you thought the left-wing totalitarians among us couldn’t sink any lower, they have. Not content to simply exploit the tragedy of school shootings in the third person, they have now recruited teenage survivors to 
TAMPA, December 13, 2013 – The Washington Post is at it again. Days before the one year anniversary of the murders at Sandy Hook, the Post is running another piece asking readers “What’s your gun number? Share your gun story.”
TAMPA, March 18, 2013 – Conservatives believe they’ve won the gun control debate because they expect any new restrictions on gun ownership to be relatively minor. That doesn’t really jibe with their position that gun ownership was already too restricted before the Sandy Hook shootings, but that is the way things go in America. Both sides declare victory, the government gets a little bigger and more intrusive, and the next debate starts from there.
TAMPA, January 20, 2013 — One day before his second inauguration ceremony, President Obama has plenty of reasons to smile. Despite a persistently weak economy, he was reelected by a comfortable margin in November and then completely outmaneuvered his Republican opponents in the tax hike standoff. That ended with Republicans breaking a decades-old pledge never to raise taxes.
TAMPA, January 11, 2013 ― Supposedly, a philosophical debate is going on between “right and left” over the natural right to keep and bear arms. As usual, both sides are wrong.
TAMPA, December 29, 2012 – The new U.S. Congress will convene on January 3rd with two high profile issues to consider. There is zero chance that they will get either one of them right. The debates on both are already framed into a lose-lose proposition for the American people, as are virtually all “debates” on Capitol Hill.
TAMPA, Fl, December 26, 2012 ― Perhaps 21st century Americans are not worthy of liberty. Reason is a prequalification of liberty, and Americans don’t demonstrate the ability to exercise it at all, at least not in a political context. It may be time to admit that a century of “progressive” education has transformed Americans into a herd of dependent, unthinking sheep.