SCOTUS wants to strip FDA and other agencies of their power to do this.
More info here: https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
You and I both know congress won’t be able to do anything, which effectively means a ruling against these would kill all federal regulations.
Why is this relevant? This is like complaining that an alarm feature doesn't exist when it's not clear who would actually do anything if the alarm ever went off.
No system the size of a state is perfect, and heck I don't think what is being proposed here is perfection. I do not want to wait for a very slow-moving-system to decide if, say, an ingredient is a threat to human health.
If you say we should fix this by a constitutional amendment to allow federal agencies to operate the way they are now? Sure! However in the meantime I'm not going to advocate for breaking the current system and extending suffering for people just to follow a documented written centuries ago.
What??? That sounds like the newly-hired dev who says, "I want to rewrite the entire code base, because this time we'll do it right!" Yeah, sure ....
Someone getting elected is not qualified to make these decisions. They are however, somewhat qualified to represent the will of the people they represent by setting up agencies with missions to address these problems that hires experts to solve them.
Our country has a lot of failures. Executive agencies are not one of them.
The rightful government is the one the Constitution created, not the pretender to the throne we have now.
Sure, there's lots of code smell. But the code runs, more or less. Continuing to run the existing hacked version seems preferable to the alternative of giving up and shutting everything down.
A junior engineer comes in, without really grasping the whole problem, and says rewrite it.
That’s what this conservative argument is boiling down to.
“This software is a critical piece of our system. It’s literally the backbone of everything!”
“Don’t care, rewrite it”
One of the great virtues of Anglo culture—one that’s unfortunately been diluted to a great extent in America—is its formalistic, rule following nature. Our tolerance of fundamental departure from the formalism of our Constitution should be a matter of shame, in and of itself.
But the complaint here isn’t merely aesthetic—about “code smell.” The ways in which we have ignored the constitution has changed who runs the country. And that’s bad for the country. No matter who you vote for, the actual running of the country will be done by the same corporate-friendly center-left bureaucracy. That’s not just frustrating to the right, it’s also ultimately frustrating to a large swath of the left. Every four years election promises go into the black hole of the administrative state, where they make at most minor changes in how the country is run.
And that's a bad thing? The administrative state is like code that's been tweaked to try to accommodate a shipload of edge- and corner cases, i.e., what's wanted by different people and interest groups who make their voices heard when things aren't being run to their liking.
Except nothing in the highest law in the land requires the OS to be a micro kernel. The nondelegation doctrine [0] arose from a needlessly-cramped (and result-oriented) interpretation of the Constitution's grants of federal power. That interpretation was correctly jettisoned in the New Deal's response to the societal threats posed by the impact of the Great Depression.
Again:
• The vast majority of software users couldn't care less whether the OS is a micro kernel — they just want code that works, with reasonable reliability and efficiency. If it's not unreasonable to describe the existing OS as being a micro kernel, then let's just move on.
• By the same token, the vast majority of citizens don't care how government is structured, they just want responsive, reliable service that doesn't needlessly intrude on their lives and isn't excessively costly. It's not at all unreasonable to say that delegation to agencies is not inconsistent with the Constitution's grants of federal power. So let's just move on and spend our time and energy on actual problems, instead of trying to return to the imagined doctrinal purity of yesteryear.
• When actually changing the "kernel" (the Constitution) is difficult or impossible, as now, then workarounds are needed. Moreover, trying to do a complete rewrite of the running production system (i.e., a constitutional convention, à la 1787) would be reckless.
• The administrative state is not unaccountable — we still have elections (at least for now), and administrative regs do change when administrations do, as we've seen repeatedly in recent years.
[0] https://www.law.cornell.edu/wex/nondelegation_doctrine (which has links to selected law-review articles at Penn, Notre Dame, and Stanford).
You can also appeal rulemakings. But that creates this crazy system where the executive branch makes the law, and then random interested parties hold up the law in the courts for years. So the executive branch and judicial branch both have their fingers in the pie—the only branch that doesn’t is the one that’s actually supposed to make the law, Congress.
I don’t want every single corporate rule breaking attempt to immediately compete with murders for courtroom time.
Obviously everyone should have the right to use the justice system if they need to, and they do have that right.
Those “rules” are equivalent to laws. The whole point of a written Constitution is to enforce fundamental structural constraints on the government, such as Congress rather than the executive being the one that makes laws.
I think what you’re really getting at is you’d prefer a far more dysfunctional government, since the actual moral/legal foundation would be no different. All of the federal agencies and their rules are derivative of Congressional acts, and again, if you disagree you can just go to court. Exactly as it would be if, for some reason, we decided that congress had to pass every single individual rule and sub rule and subsubrule and subsubsubrule exception 2 infraction 6 exemption 16.a and if, to combat any assessment of infraction, you had to go directly into the actual judicial system.
All the legal basis is identical, the only thing that’s different is how wildly ineffective it’d be. If that’s your goal, just say it so we can move on.
I think the only thing at question should be the scope of delegation and there are arguments to be made about that.
IMO this argument is an attempt by small government conservatives to dismantle most/all regulatory oversight and rule making knowing full well that congress cannot meaningfully substitute.
The Boeing MAX second shitshow is on the front page of HN. Both are the direct result of the FAA "trusting" Boeing to self-regulate/inspect etc.
The FRA has let rail freight companies do basically whatever they want. Result? East Palestine, not to mention the railroad industry having free reign to leave trains parked bisecting towns and counties, blocking fire trucks, ambulances, etc.
Deregulation of the mortgage industry? Yeah, that's worked so well...twice now.
Self-driving cars? That's been going so well, with some company's vehicles caught repeatedly violating traffic laws, and one even killed a woman walking across a road.
USDA? The meat processing industries have pushed hard to self-regulate their inspections while we have ever-growing incidents of food contamination...and the number of inspectors has been slashed.
ATF? Doing a fraction of the inspections and enforcement they used to because of staff and budget cuts.
OSHA? Same. Fraction of the inspections they used to.
To then come up with "federal agencies are run amock and need the USSC to reel them in" is a truly wild hot take.
What's actually happening is that these disasters are prompting agencies to put back their regulations and folks like you are pretending that this is some new big-bad-wolf crackdown on the poor poor corporations which are currently all enjoying record profits...
I agree with most of your points until this one. The only question for the Supreme Court is whether the Constitution allows what has become a fourth branch of government that effectively subsumes the other three. Whether that fourth branch is doing a good job or bad job, or could be doing a better job, is besides the point.
Even as a law student reading the case notes in my admin law textbook (https://faculty.westacademic.com/Book/Detail?id=335338), it seemed pretty clear to me that the justifications for the whole scheme were contrived.
In fact, all of the problems you mention are arguably caused by the fact all these important decisions are being made by a court branch of government that isn’t in the Constitution and sits outside the system of checks and balances. The people you can vote on aren’t actually the ones running the country. And the ones running the country are people you can’t vote on.
For example, inspecting airplanes seems like exactly the thing the executive branch should do. But deciding that airline makers should be allowed to self-inspect airplanes? That seems like lawmaking Congress should do. And that change never would’ve gotten through Congress.
Congress has the ability to make laws about that even after it’s been widely publicized and they haven’t.
Failed state or does Congress understand and trust the FAA will appropriately make changes?
Even defenders of the administrative state do not argue that the Supreme Court can simply “reinterpret” the Constitution to allow executive agencies to make law. That’s too intellectually dishonest even for the “living Constitution” folks. Instead, they rely on legal fictions to distinguish administrative rules from laws.
And in some cases, to be fair, that legal fiction suffices. Congress can outlaw harmful drugs and then have the executive make lists of which drugs are harmful. But in many cases, the rules being made by agencies are indistinguishable from laws.
The funny thing is that there’s a couple of agencies that actually respect the distinction between administrative rules and laws, because they date back to the early republic. The USPTO, for example, has all sorts of rules governing the administrative process of getting a patent. But it doesn’t have the power to make or change patent law. It can’t make legislative decisions, such as deciding that patents should be valid for a longer or shorter amount of time. Congress must do that.
This is true of every other agency as well. They can changes rules, not laws and the rules do not supersede the law.
Your argument falls apart because the entire point is that we elect representatives. Those representatives can not do _everything_ themselves.
Even the most basic city government has elected and appointed positions.
Do you elect every single cabinet member into office? How about all the people that work in those offices?