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I really don't understand the decision. In my mental model the executive branch exists to implement the laws that Congress passes, Congress deliberately leaves leeway in laws to give the executive branch flexibility, this flexibility has been previously affirmed by the court decision Chevron v. NRDC.

This decision seems to give more power to Congress but on net I think it makes the laws Congress passes weaker because it strips away the effectiveness of the implementation.

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You have to know the actual motivation:

The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.

If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.

This is a win for industry.

Congress doesn't remotely have the bandwidth to explicitly write out and decide all the little rules it takes to regulate the country, even if they had a clue what they were doing in each case

It's pretty clearly designed to dismantle the federal regulatory apparatus

And the court has previously understood and affirmed this "leeway" after Chevron v. NRDC. So its another case of the court overruling precedent.

Could the same agencies that now regulate industry directly pivot to assisting congress with writing the laws?

Sure, if they’re lucky they might get a 30 second courtesy chat between lobbyists.

Then it should explicitly delegate that to the executive branch where applicable, as it does for other things. You don’t just throw away separation of powers because it’s convenient.

That's exactly correct.

Congress has plenty of time and money. They are too busy jockeying for votes to do anything. The problem with congress is that they are too focused on winning elections instead of doing the GD job. I view this as yet another reason why we need strict term limits for members of congress. There are too many leeches.

I don't think that's true.

Typical staff sizes for congresscritters seem to be about 60 people. I managed to get some salary data on them, and $5M total per congresscritter seems to be reasonable [0]. So, I dunno, double that cost for ancillary expenses and the like, you get ~$10M per congresscritter. Multiply that all out and you have ~26,000 people and ~$4.4B total.

The total spending of the whole US federal government is ~$4T with ~4M people employed. So, ~1000x the budget and ~150x the staff of all of congress and their staffers.

Sure, yeah, you can double or 10x the staff of congress, even up the budgets by 100x. Maybe only 1/10th of the budget is actually needed. Maybe you can get by with giggling the staffer pay ratios. Whatever. You're still really short.

Oh, and you still have to have the staff that was doing the original jobs of the congresscritter.

Unless you completely rejigger how congress works to the tune of a ~100x increase in budget and staff[1], there's just no way congress can take over that job.

[0] There's not really a database on this that I found. I just took a random sample of 35 congresscritters and then googled for their staff sizes and salaries. It's not definitive and it varies a fair amount, but 60 seems to be a high yet good estimate.

[1] Imagine trying to grow any business or enterprise by 100x. It would take a very very long time for the dust to settle. Let alone working all the kinks out of the system that you're creating from whole cloth. And that's a new system. You'd also have the fight with the old system when trying to do this between congress and the exec. branch. The likelihood of it occurring in any kind of reasonable timeline and in any kind of reasonable effectiveness is precisely 0.

> This is a win for industry.

I would frame it more as a loss for the planet, at a time when we're facing the greatest existential threat in all of history.

Government works off of law, not merely intentions. Intentions can change. Laws are documented. otherwise what’s the keep of random police officer from deciding that they have the ability to regulate the applications on my phone? After all, they’re just keeping me safe.

Legislation often deliberately leaves interpretation of statutes to the agencies implementing the laws. The legislation can just say "The parks department shall keep the park safe and well-maintained," without specifying what 'safe' means, or how often they collect the trash.

Under that law, I could clear cut the forest, turn it into a meadow and put up a fence around it to prevent people from getting in.

Yes, a functioning government depends on parties acting in good faith and assumes everyone is working for the common good, not always achievable when vast sums of money are in play. This case is a great example.

Yes, this is a win for republican democracy, and a loss for "governance by experts."

> Yes, this is a win for republican democracy […]

It is a win for the anti-government minority:

* https://www.vox.com/2018/9/12/17850980/democracy-tyranny-min...

* https://harpers.org/archive/2017/03/tyranny-of-the-minority/

* https://www.orlandosentinel.com/opinion/guest-commentary/os-...

* https://www.politico.com/story/2009/03/the-tyranny-of-the-mi...

Yes, the "minority" party that's currently 2 points ahead on the generic Congressional ballot (https://projects.fivethirtyeight.com/polls/generic-ballot/), won 1.5 million more votes than Democrats in the 2016 House elections, and is on pace to win several million more votes than Democrats in the 2022 House elections. That's an interesting definition of "minority" you have there?

If we had a parliamentary system, I would agree with you. But the actual on the ground reality is Congress does not represent the actual will of the people due to malaportionment.

The main implication here is that the policy making decision tree needs to change.

Whereas before it was:

Do we have the political will to enact this from sea to shining sea via Federal legislation? -> YES/NO -> Can we enact this from sea to shining sea via fiat through an existing administrative agency? -> YES/NO -> Can we enact this from sea to shining sea via the SCOTUS? -> YES/NO -> Can we enact this policy gradually via the States? -> YES/NO

Now it is:

Do we have the political will to enact this policy from sea to shining sea via Federal legislation? -> YES/NO -> Can we enact this policy gradually via the States? -> YES/NO

The States themselves don't have the "malapportionment" problem, and insofar as Congress does, it's because the system was always set up for change to occur from the bottom-up, not the top-down. The EU refers to this as subsidiarity [https://en.wikipedia.org/wiki/Subsidiarity_(European_Union)]. Congress is structured in exactly the same way as the EU, as well as other federations like Australia and Switzerland.

Justin Trudeau became Prime Minister of Canada last year despite his party winning almost 200,000 fewer votes than Conservatives. Does that mean that Canada's Parliament "does not represent the actual will of the people?"

If "we had a parliamentary system"--where the executive is selected by the Party that wins the most votes in the lower house--Bush still would have won in 2000 (https://en.wikipedia.org/wiki/2000_United_States_House_of_Re...) and Trump still would have won in 2016 (https://en.wikipedia.org/wiki/2016_United_States_House_of_Re...).

If 'we had a parliamentary system" Biden would be shown the door next year when Republicans again win a majority of not only House seats, but total votes for House candidates.

Looking at the results for only the two largest parties when there are five parties in Canada's Parliament and none has an outright majority of seats is completely misleading.

Trudeau can only govern with the support of the NDP. Liberals plus NDP got a majority of the popular vote[1].

[1] https://en.wikipedia.org/wiki/Results_breakdown_of_the_2021_...

This is a win for corruption.

> The point is to limit the administrative state and move power to congress (as you said), because federal rule making is relatively open, and the administration has experts.

> If it moves to congress, they'll just take the legislation lobbyists hand them and pass it, because they don't have the expertise to actually write technical regulations.

Huh? Remember Ajit Pai? It hasn't been that long.

It's profoundly anti-democratic for major decisions to be made by unelected, unaccountable technocrats (with a comment period) than by actual elected representatives who can at least theoretically be held accountable through elections.

IMHO, the solution to this is probably just to pass a law that authorizes this regulation that simultaneously pays off the states who object so they feel it's an overall good deal for them (e.g. fund a nuclear plant and a bunch of new infrastructure for each of them).

Ajit Pai got kicked out when the administration changed! Exactly how it should be!

They're not unaccountable, the president can dismiss them. Just like Trump fired Janet Yellen, and SCOTUS already ruled the structure of CFPB where removal for cause was required is unconstitutional.

The idea congress is "democratic" is a huge joke. There's a reason why the House of Lords has essentially no power any more. Let alone the literal open corruption campaign finance is.

Everything you say may or may not be true, but it doesn’t address the point of the ruling or what's under debate. If you don’t believe that the Congress is representative of the will of the people, your issues are not with this or that law or SCOTUS ruling, but with the fundamental structures of the American republic.

Congress won't act, the Executive isn't permitted to do much even with what they were given by Congress, and the People are powerless to do anything unless 100% of them vote, which never happens, and even then may be overruled in many places.

No future for any of us I guess.

> Congress won't act

Under a legal constitutional system, when Congress "won't act", the laws stay the same as they were.

The Executive branch taking unilateral action beyond its authority because the Legislative branch "won't act" scares me even more, for the long-term health of our democracy, than laws staying the same as they are now for a bit longer.

I see you've fixated on an obvious truth but missed out on the actual chess game.

> People are powerless to do anything unless 100% of them vote

I'm not following this logic? Why do we need 100% of people to vote?

I assume you mean to "oust ineffective elected officials" but I suspect that there are many people that don't vote because they are "happy" and don't feel at risk of their desired official being outed. But again, I might be off base. Hoping you can clarify more of what you meant.

Most of the public cares about climate change and wants the government to do something. The overwhelming majority of the public supports abortion in some form or other. If they actually voted maybe we could change things, but lots of people just don't vote.

Having participated in several cycles of political organizing, the actual ground game is Get Out The Vote (GOTV): not trying to get people to change their minds, but getting people to just get off their asses.

> Most of the public cares about climate change and wants the government to do something

Most of the public cares about climate change and wants the government to do something so long as it doesn't cost them anything (Or more precisely, more than 10 $/mo)[0]. Or you can just see the consternation about gas prices right now to predict how well any climate change related regulation that actually materially affected carbon production would go.

[0]: https://apnorc.org/projects/what-americans-think-about-the-e...

Many people don’t vote because they’re skeptical that their vote can affect anything — either because they’re in a definite minority in their legislatures or they think elections are bought, in a “changing minds” sense.

It's still very much an open question as to whether congress is allowed to abdicate its power of rule making to the executive branch. The constitution seems to imply that the answer is "no," but the past interpretations of it say "yes." Chevron is a younger precedent than Roe.

> It's still very much an open question as to whether congress is allowed to abdicate its power of rule making to the executive branch. The constitution seems to imply that the answer is "no," but the past interpretations of it say "yes." Chevron is a younger precedent than Roe.

You say abdicate. Not true.

Congress is obviously empowered to delegate.

Please be specific. Who (written where?) thinks this is an open question? Please cite evidence of this.

Here is a discussion on Chevron and a neighboring ruling (Auer), from a favorable perspective, which outlines some of the challenges: https://www.law.georgetown.edu/public-policy-journal/wp-cont...

This is also a common theme of many recent cases. Examples include: American Hospital Association v. Becerra, SEC vs Cochran, SEC vs Jarkesky, Gundy vs United States.

It is not clear that Congress can actually "delegate" the power to write laws.

Nobody denies that "Congress deliberately leaves leeway in laws to give the executive branch flexibility."

The whole point of this case is that Congress gave the EPA leeway to decide standards and scrubbing technologies for toxic pollutants, and the EPA stretched that leeway far beyond what Congress intended to address a completely different problem involving a non-toxic alleged pollutant.

The court has already ruled in Chevron v. NRDC that executive agencies have deference in interpretation of statues if Congress has not explicitly granted that power. The Clean Air act was passed in 1970 to ensure air quality, through science and the advancement of our understanding the EPA has identified CO2 as a toxic pollutant. I don't understand why we need an updated law by Congress when the EPA is much closer to the issue.

But does Congress or the EPA get to determine that scope?

You're arguing that the EPA gets to make that call. The supreme court says it's Congress.

That's not really how it works. If Congress wants the executive branch to have leeway then they need to explicitly grant it.

Correction: That's exactly how it worked until a large change in the court composition decided to change the rules.

People like to pretend that SCOTUS decisions are retroactively true, that somehow they're discovering legal nuances previously overlooked.

That's not how it works. As the cliche goes, they're not final because they're right, they're right because they're final.

> how it worked until a large change in the court composition decided to change the rules

FDR created the modern administrative state. Chevron was decided in the 80s. None of this is how it’s always been.

What is the argument here? You want us to use law theory from before the industrial revolution or something?

> What is the argument here?

That limiting the administrative state is far from a monumental changing of the rules. Nobody is challenging the administrative state per se. The major doctrines principle is just being expanded, which limits Chevron, something that only came into being a few decades ago.

That's an OK summary of FedSoc talking points, but you're missing some of the barbs. Might want to try again.

The effective reuslt of the non-delegation doctrine is that, when Republicans do not like a policy outcome, Congress is required to employ a time machine to give explicit instructions to an agency decades ahead of time.

Like the federalist hacks quoting 13th century jurisprudence??

Some sort of pesky "constitution...?"

Quibble all you like, it has been that way for living memory, and reversing this is going to cause an enormous amount of chaos, because the modern state is built on these assumptions.

This is not some minor change, you're going to throw the federal government into chaos. I know that's the goal for a lot of people, but they should have the courage to admit that.

For many of us this is a welcome change, the roll back of the administrative state is very very much needed

Discussions about the EPA seem to have to magical ability to make people forget that gems like the DEA and DHS exist. Heck, until recently the FCC was headed by a corporate shill.

People take a very narrow look at the issue, they fail to see the forest for the trees

Avoiding chaos is not a valid reason for allowing a legal injustice to persist even one day longer. I support legal mandates to reduce emissions, but it needs to be done the right way as an Act of Congress, not by unelected bureaucrats creatively reinterpreting a law to suit their political goals.

Chevron deference is executive assent of Congress right to delegate. The Supreme Court is flouting precedent and re-legislating from the bench.

> Avoiding chaos is not a valid reason for allowing a legal injustice to persist even one day longer.

Wow, people are sure selective about which injustices they cannot tolerate "even one day longer".

> I support legal mandates to reduce emissions

Bullshit. You are doing the opposite and know perfectly well what's going to happen.

Please don't cross into flamewar like this. It's not what this site is for, and it destroys what it is for.

Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.

https://news.ycombinator.com/newsguidelines.html

The dissent indicates the power is already explicitly granted in the EPA statute plain as day. It really isn't clear to me what language would satisfy the majority.

“The EPA may regulate carbon emissions” would do the trick.

Now repeat for every chemical, and you have an unregulated mess, as this decision intends to create.

"The EPA may regulate emissions that contribute to global climate change" would also do the trick.

These laws are all quite old, many pre-date the EPA even and are from the 1950s and 1960s. They were clearly written for toxic pollutants, which carbon is not.

Let me ask you plainly: are you a lawyer? You seem well informed, but not lawyerly. I feel like you have good theoretical knowledge of how this should work in an ideal world, but not as much understanding of how it works in practice.

Why do you propose every single atom needs to be explicitly listed? 42 USC 7411 does grant EPA the power to determine what emissions need regulating, and how to best regulate them.

>Congress deliberately leaves leeway in laws

This is the crux of the problem. The "Executive branch" is basically the cops. That leeway lets the cops invent law, prosecute you, and potentially imprison you. There's another case where the executive branch effectively acted as the legislator, cops, and the judicial branch (they prosecuted someone for a rule they created and found them guilty, all internally).

Congress needs to do these things, via simple and explicit laws that are clear and easy to understand. The role of the executive is _enforcement_, while the judicial arbitrates.

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