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Comment by notliketherest | Hacker News Reader

Here's a novel idea: regulations should be created by the congress, not by the President.

The executive branch is granted authority by Congress to issue rules. This saves the congress from writing every detail into each law.

It's similar to pork -- congress can write: spend $X on whatever; or they can write: spend $1 on project A, $2 on project B, etc with a final total of $X. If congress writes the first, then the executive branch will make the decisions about the specifics of how $X will be spent.

If congress does not want the executive branch to decide, it's up to Congress to put the details into the law, and restrain the authority of the agencies. Federal rules can never override a law passed by congress.

Aside from the unconstitutionality of the whole thing it’s fine.

you're a lawyer, so can you explain for me? What makes administrative law unconstitutional? Is Congress not allowed to delegate authority to the executive branch?

There’s a whole book on it - ‘why administrative law is unlawful’

You probably mean "Is Administrative Law Unlawful" by Philip Hamburger?

http://press.uchicago.edu/ucp/books/book/chicago/I/bo1743668...

Yes, rhetorical question.

Congress can clearly delegate enforcement authority and give the executive some enforcement discretion. But calling modern administrative regulations, with agencies that make laws and try people in front of executive-branch judges, an exercise of enforcement discretion is a reach.

See: https://pdfs.semanticscholar.org/3d45/15c4f13933f50394a0a220...

> The post-New Deal administrative state is unconstitutional,* and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.

You're saying the delegation doctrine is unconstitutional? That (Supreme Court) ship sailed decades ago, so what's your view on Marbury v. Madison's doctrine of judicial review?

I think J.W. Hampton was rightly decided, but that the “intelligible principle” formulation led later New Deal-era courts astray. The framers might have envisioned Congress delegating the authority to adjust import duties, but I don’t think they envisioned executive agencies fashioning entire codes of law in specific areas, including creating crimes. I agree that the Supreme Court gets to say what the law means, but also agree with Scalia that stare decisis is a matter of policy, not dictate, and the Court could revisit the issue and decide to actually enforce separation of powers.

It's not a novel idea, it's an old and discarded idea.

Regulatory agencies such as FDA and EPA exist because it actually takes an agency to do a competent job regulating drugs and medical devices and investigating the toxicity of effluent. They were created by Congress, but under the Executive branch.

"Today, Congress passed a bill in both houses requiring airlines to disclose baggage fees. Riders to the bill also funded $100M for pork-related research in Alabama."

Laws. Those are called laws. Regulations are lawmaking delegated to the executive branch.

I thought regulations are laws, just with a focus on technical details that can be changed more frequently and easily.

They often have the force of law (if permitted by statute), but they are definitely not law.

Congress grants agencies (in this case, DOT) the authority to issue regulations as long as those actions do not go beyond their statutory authority or violate the constitution.

https://www.federalregister.gov/uploads/2011/01/the_rulemaki...

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