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Comment by _delirium | Hacker News Reader

It's fairly complex even for executive orders; depends on how they were implemented. Some are purely the president's prerogative, in which case the next president can do whatever they want as well. But quite a few are Congress having delegated to the executive branch implementation of some provision (Congress loves to craft fairly vague laws and delegate the details to administrative rulemaking by various agencies). In that case there are certain required rule-making processes that have to be followed, such as public comment periods, cost-benefit analyses, appeals, etc. The president can direct an agency to implement a particular preferred approach, but it has to make it through this process to become binding regulation, and a subsequent president would have to go through the same process to reverse it.

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>>Congress loves to craft fairly vague laws and delegate the details to administrative rulemaking by various agencies

I can't quite tell from your tone if you're implying that this is a bad thing, or if you're of the opinion that Congress is shirking on their duties when they do this. I read it like, "'Congress just LOVES to pass vague laws so others have to step in' /sarcasm." My apologies if I'm misreading your tone.

For posterity, just to be clear, this is definitely a good thing here. In the case of, for example, the environment, which this post is about: Members of Congress are not experts in every field, so it makes more sense to pass a law called the Clean Air Act requiring protection of the air with some parameters, and then letting the experts at EPA fill in the details. In this case at least, it's not Congress shirking their duties, but rather the way it should work. i.e. Congress issues laws requiring general things, and the experts at the various federal agencies fill in the details with regulations (though obviously it doesn't always work perfectly).

Administrative agencies encourage Congress to micromanage the economy, passing regulations full of loopholes, instead of passing categorical bans on harmful things or practices.

Also, I don't think administrative agencies are constitutional. They're a fourth branch of government not described in the constitution.

The powers of administrative agencies come from their organic enabling act, which is passed by congress. In many cases, agencies cannot pass categorical bans on harmful things or practices because they don't have that ability.

Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress. Where agencies act ultra vires, beyond their power, SCOTUS will frequently rule what they did unconstitutional. But they are in themselves constitutional, and saying otherwise smacks of the same arguments people make when they say that income taxes are illegal. i.e. it discredits the person making the statement.

> Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress.

There is a difference between what the courts have ruled and what the constitution actually says. The significance of the difference being that when the courts have it wrong, you can sometimes convince them to change their minds. Or at some point different justices are appointed with different opinions. Roe v. Wade is long-established precedent but that doesn't mean it hasn't been a major consideration when appointing justices to the Supreme Court.

And there is a completely reasonable way to have "administrative agencies" without making them part of the executive -- you make them part of the legislature, in the nature of the CBO. The difference being that after they propose new rules, Congress would vote to approve them or not. Which in most cases could be a rubber stamp but it would give Congress the opportunity to say no when it matters, and get the executive branch entirely out of the rulemaking business.

There are a lot of scholars who think the current administrative state is not constitutional. The Supreme Court upholding administrative agencies are not well reasoned. Two are New Deal era cases, and Mistretta is a results-oriented bit of hand waving: "Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."

Obviously the practical needs of Congress has no bearing on whether a delegation of legislative power is constitutional.

Can you name a few of these scholars? This is a body of legal thinking I've never been exposed to before. I'd like to see who/what you're talking about.

Gary Lawson wrote the Administrative Law textbook we used at Northwestern: http://www.jstor.org/stable/1341842?seq=1#page_scan_tab_cont....

It's not just a question of what expertise the legislative has or doesn't have. Just like software you'd ideally want to work on laws in an iterative fashion. It's incredibly unlikely that a law, especially complex laws like the Affordable Care Act, work perfectly so it makes sense to go over it after you've seen it's effects and make corrections.

In the current political environment that's not really an option, so you pass on power to the executive and states to make changes instead.

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