Walgreens is restricting sales of abortion pills because they (probably correctly) believe they're more likely to face consequences for defying conservatives than for defying liberals, despite liberals official control of the Presidency and Senate and nationwide popular majorities. Either use power yourself or watch your enemies use power instead! There's no alternative!
Democrats have no instinct for exercising power after being trained for decades to work through the courts.
The courts are gone - taken over by our enemies who disdain the very concept of rule of law.
The only time Dems now manage to think creatively is coming up with reasons why other forms of exercising power would be problematic or impossible.
@mtsw Fair point. I’ve been thinking about the #SCOTUS majority’s tendency to set aside texualism to implement their policy goals through the ::Inception gong:: Major Questions Doctrine. Enough MQD cases & they’ll be forced to either continue embracing it, & thereby gradually erode their preferred analytical paradigms, or they’ll phase out MQD, passing some power back to the Executive (not always good, I know) & maybe - MAYBE - motivating #Congress to write more precise #legislation.
You have the backwards a bit. The major questions doctrine isn't setting aside textualism but rather is a implication of the textualism of the Constitution.
Major questions doctrine is implied by textualism.
The Constitution separates powers, and the major questions doctrine is just about seeing how the powers interplay as per the text of the Constitution.
@volkris @mtsw To clear, I can entertain the idea that, as you say, MQD is implied by Constitutional textualism. I disagree with that, but it’s a good faith claim you’re making that I can see reasonable people, like us, disagreeing about.
My position is more a practical one: they don’t really deploy MQD against every overbroad Congressional grant of additional Executive power.
They deploy it where that power, or its specific use, offends conservative, rather than Constitutional, principals.
@volkris @mtsw We’ll have to disagree. It’s text text text until the text grants a breadth of power offensive to some jurists, then it’s MQD.
Congress writes laws for a living. It it could be more narrow with its language. It was not.
I’m not saying the law or Biden’s use of it are free from criticism.
But “waive” is a really broad word, and there’s no strong textualist case against the program.
Enter MQD, a way for SCOTUS to narrow a broad emergency power Congress gave to the Executive.