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Comment by rat87 | Hacker News Reader

Or you know they could delegate their authority to an agency staffed with experts.

I'm all for Congress actually doing its job but we all know they won't and that passing each regulation by hand isn't possible without some sort of parliamentary system where legislative and executive branches are combined

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What do you do when an agency exceeds its authority?

Say FDA decides that houses can make people better or sicker. So they start passing housing regulations. This would be a drastic overreach outside of their law. It's experts making decision. They may even be correct. But according to todays ruling congress would need to authorize such a broad power grab.

This is what has been happening for decades, the court is finally telling Congress to get off its rear and do its job.

Couldn't congress "get off its rear and do its job" by forbidding the FDA from regulating housing? Requiring every regulatory action to require an affirmative from congress is absurd.

Besides that, congress controls the budget for these agencies. Simply by funding the EPA and the FDA, it demonstrates a level of support for their actions.

Not every regulatory action requires congressional affirmation.

Congress is allowed to delegate their legislative authority to a third party, but it must do so through an intelligible clause. This clause states a clear objective function to the agency.

The issue is when agencies make laws that are unrelated to, in conflict with, or do not clearly achieve the goals of the intelligible clause because those are laws that the agency is not empowered to create.

Congress giving the EPA a mandate over emissions of pollutants and the EPA setting emissions targets for coal power plants seems to be a clear and objective function through an intelligible clause.

Addendum :

The CAA doesn't contain a list of pollutants. It contains a definition, which CO2 fits. This already went before the Supreme Court in Massachusetts vs. EPA and set the precedent that CO2 must be considered a pollutant under the CAA. This precedent was already challenged by a few states and was upheld, and the Supreme Court didn't overrule it today either, instead going for another line of argument.

Yes, you're right. I was initially thinking this came down to an intelligible clause similar to how people argue OSHA is unconstitutional due to competiting intelligible clauses. My failure was thinking new and existing pollutants needed to have the same solution, and the constraints for arriving to the correct solution were in competition.

Upon further review: a reading of the SCOTUS pdf combined with the referenced laws, I do now believe this was a bad conclusion.

Major questions doctrine seems unbased in an measurable way. Instead, the court should have ruled that the EPA currently had the authority to do this as it was clearly granted in law, and if Congress wanted to limit it, then they would need to do so legislatively. Not the current decision which says that Congress probably didn't mean what they wrote into law because they dun deligated a lot of power.

Edit: someone else wrote this, which does make sense if their supposition is. Regardless, I'll need to read more of the laws beyond 111d.

> No it isn’t. The Clean Air Act is all about requiring polluters to use control technology, and requiring new sources to use better and more expensive control technology than existing sources. That’s the program Congress designed. Restructuring the energy industry to address climate is a different solution to a different problem, related only by the commonality of emissions into air. It’s like using drug laws to regulate processed foods because both involve harm caused by ingesting things.

According the Clean Air Act, C02 is not a "pollutant". The EPA can't just decide that it is, and start issuing economy changing directives - regardless if they are right.

This should be very easy for congress to fix if they want to.

I answered this question above but to answer you directly Congress can use the lawmaking process to overturn any regulation they find egregious. They can also pass laws updating the regulatory powers of an agency. Don't believe the congresspeople claiming "there's nothing they can do" about regulatory agencies. They're lying. Shocking, I know! :)

You have identified the core of the regulatory challenge: Congress shirks responsibility. My question, what path makes Congress more likely to be responsible (and, upstream of that, get voters to hold them responsible)? Do we want regulations to multiply or languish in the absence of congressional action? I think voters are more likely to demand practical, governance oriented representatives if the regulatory agencies aren't bandaging over the problems. Do we want face the pain now or will we just keep kicking the can down the road?

The law can provide the authority to act, the boundaries of action, and define the intent. The agencies, by taking on the role of determining & implementing the details of Congress’ directive, reduce the overt political influence that tends to dilute or pollute (no pun intended) the aims of the legislation. If Congress finds that the agency has stepped outside its mandate, they can correct the legislation to be more specific.

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