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Comment by redserk | Hacker News Reader

It's worth noting that these agencies and their powers did not spring up out of thin air. Various elected Congress sessions wrote the laws that created and empowered these agencies to create rules.

This is a reasonable implementation of a "democratic republic" as Congress still has oversight.

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The problem with merely having regulations rather than laws is not a concern that they may not have proper legal authority, but that they are less durable and more easily overturned than laws passed by Congress and signed by the President.

I agree, and I'd rather Congress weigh in now that we've had this specific issue flip-flop twice. I do not like the implication that agency rulemaking is anti-democratic though. We have utilized this structure for well over 120 years, or practically half of the country's history.

We have always had things like executive orders. Just an insane number are issued between the Great Depression and WWII, and then we have 100 years of using them as a ham fisted tool for policy.

The FTC ruling on non competes... Great, except that getting rid of that rule doesn't create its complementary law around "rading" (see this about ca law: https://www.flclaw.net/is-poaching-employees-illegal-califor... ).

And yes we have used this structure for a long time, but not to this extent, not as a political football for democratic impasse.

You may not like it being pointed out, but having rules made by appointed regulators rather than elected legislators is obviously anti-democratic. Yes, delegating powers like this is a practical necessity, but having made that reasonable tradeoff does not erase the reality that it's a less than perfectly democratic process. So is the structure of Congress itself.

First, the US is not a pure democracy. We elect representatives on our behalf to handle voting on matters. So dismissing something as "anti-democratic" is not applicable here.

Our elected officials set up a system where a series of agencies under the Executive Branch may create rules, but the elected officials have oversight authority.

If you disagree, you may petition your state government for a constitutional amendment that prohibits this practice and advocate for additional states to join in.

> So dismissing something as "anti-democratic" is not applicable here.

[...]

> If you disagree, you may petition your state government for a constitutional amendment

I think you're misinterpreting what's being said here in order to over-react. I don't think anyone in this thread is saying that executive orders and delegating powers to appointed regulators should be expunged from our system of government. But they should be acknowledged as a necessary evil, and their use minimized when possible, and not allowed to completely replace the legislative process. Whereas you seem to be defending taking those practices to the extreme simply because of historical precedent.

> I think you're misinterpreting what's being said here in order to over-react.

If you can point out how I'm misinterpreting, I'm open to discuss. From what it appears though, we have a disagreement on what we wish to delegate to different branches of government.

> But they should be acknowledged as a necessary evil, and their use minimized when possible

I disagree that executive agency rulemaking is a "necessary evil". Congress can simultaneously be derelict in their duties as a legislative body while having a executive regulatory apparatus that creates rules under their purview.

> Whereas you seem to be defending taking those practices to the extreme simply because of historical precedent.

If not for historical precedent and recognizing the practices we've been utilizing for 4-5 generations of people, what should we prioritize?

> rules made by appointed regulators rather than elected legislators is obviously anti-democratic

The people making the appointments are elected. It is obviously democratic.

The general population can't get together to vote on everything, so we elect representatives to do that job for us. Our representatives can't make rules on minutia, so they appoint regulators. Don't like the regulators? Go talk to your representative.

The opposite is worse: I live in a town that still has old-style town meeting where any resident can show up. It's tyranny of whoever has time to show up and stay up late, because someone will always create an amendment at 11PM to overrule a town-wide vote.

The scope creep of these agencies in recent decades is substantial, though.

It's one thing to set rules for dumping that protect wildlands, or verify drugs in the medical supply chain aren't toxic.

Deciding the rules of commerce? I'm less than thrilled.

It’s not scope creep as much as recognizing that Congress is less functional than it used to be. Obstruction has been normalized since the backlash to Obama’s election – think about how often people claim you need 60 votes in the senate – and that means anyone who sees a problem has an incentive to figure out how to do it without needing timely action.

You'd rather have some idiotic trash that's been elected to congress have to decide what a safe dose of a drug is than an agency largely staffed by people with deep medical training?

You'd rather have such a decision be at the whims of political showboating and culture wars than what can be proven safe and effective with actual medical testing?

I'd argue that a better use of legislature time would be to find ways to reduce the clout of political beliefs in people appointed to high level positions in the agencies rather than requring the useless fools eleceted to congress getting final say in what the rules are.

Seriously do you think the jewish space laser lady should have any say in sattelites or forest fires? Do you really want the moron that thinks injecting bleach is a viable cure to decide what makes for good medicine? Do you want a fool who think's an ar-15 with a certain set of cosmetics is a scary bad gun, but an ar-15 with hunting stocks isn't the exact same weapon to decide firearm policy?

Those are the people you are suggesting should make the decisions on specifics?

That was their design to be agile. Regulations can get passed in 100 days and not years.

I blame this squarely on the congress. Congress has been the weakest it’s ever been, passing almost nothing substantial. If we had to rely on them to ensure basic things like drug approvals we never have anything. They can barely get funding passed to fund themselves!

Why do you blame "congress" instead of Republicans?

Perhaps because Democrats control half of Congress today, and the general trend of Congressional avoidance-of-clear-rulemaking has been the same even during those periods that Dems or Republicans control both chambers.

The filibuster makes this kind of 'control' moot. You need a filibuster proof majority in the Senate and a majority in the House to actually get anything done (and the Presidency, to not veto). 'Control of half of Congress' when that half is the house, is meaningless.

That applies equally when each party is the filibuster-sized minority in the Senate.

And: if Senate majorities really want to pass something, they can change the filibuster rules – and have, for some topics.

Otherwise, the filibuster is maintained out of tradition, courtesy, and its usefulness as a change-of-control 'debounce' mechanism – as well as providing a convenient excuse for posturing more and doing less, as Congress is wont.

Still, in other eras, Congress was able to move compromise legislation forward. Recently, Congress has been unable to – both parties, no matter the relative control. Any belief that it's only "the other guys" is partisan myside blindness.

Agencies are not beholden to Congress; they are beholden to the executive branch that creates them.

That is why Nixon created the EPA so that there would not be a Department of the Environment that was out of the hands of executive power.

Congress creates and funds agencies. Agencies write the regulations. This is all specified in the law that was passed. FCC commission makeup is defined by law and their authority is defined by law.

> Nixon created the EPA

Only because Congress allowed it.

https://www.epa.gov/history/origins-epa

Congress created the FCC. Congress passed many laws governing agencies. Departments are not out of the hands of executive power.

https://en.m.wikipedia.org/wiki/Congressional_Review_Act

Congress has the legislative power all agencies derive their power from some act of congress.

Yet the Chevron decision empowers agencies to make rules independent of Congress in cases where the rules don't already exist or are unclear.

https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....

Unsurprisingly, Kavanaugh and the rest of the conservatives would prefer this approach be relegated to history. Of course, the areas of particular interest that he cites as examples (securities e.g, finance, communications, and environmental laws) just happen to be those where the two parties could not possibly be further apart in their approaches.

https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

Also gun laws. Any firearm enthusiast can tell you how inconsistent and incoherent various ATF rulings and determinations have been.

You lost me at "firearm enthusiast."

Try again when US gun laws look more like Japan's -- including an assault weapons ban.

https://www.cnn.com/2022/07/08/asia/japan-gun-laws-abe-shoot...

I don't see the relevance to the topic being discussed.

The fact remains that the ATF enjoys the ability to unilaterally revise firearm policy well beyond what many find reasonable without a change in law made by Congress.

This scenario is precisely why the outcome of Chevron is useful -- and, I'd argue, vital in addressing areas where legislation is needed, even if we still disagree about what shape it might take.

Congress' process takes too long to adapt to conditions on the ground. The ATF has a focused mandate to study and set policy in this area without waiting for Congress to consider the issue. It might not be perfect and is still subject to political influencing as the makeup of the committee changes based on appointments, but at least something gets done.

Regarding the FCC, there is some prioritization based on the type of traffic served, but it's fairly commonsense in its approach and the committee recognized that a complete lack of regulation wasn't in the public's best interest.

The idea that everything is left to Congress -- or ignored, as the case may be -- creates a situation where good ideas don't develop into meaningful legislation or the bad ones get implemented over the will of the majority.

Again, not only does this not happen in parliamentary systems, it's not possible because the people debating the issue are all on the same side. They all agree on the desired outcome, it's rather a question of how far they want to go.

It seems to me that the Chevron doctrine has essentially created a fourth branch of government with minimal democratic oversight. It feels like an end run around the constitution. In many cases the agencies exercise legislative, executive, and judicial powers all at the same time.

Congress, in its current state is a sclerotic body barely capable of doing routine committee work that doesn't even rise to the level of passing laws.

They had their chance...and failed spectacularly.

Not if the agencies have leverage over Congress.

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