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Comment by wolverine876 | Hacker News Reader

Instead of the same old talking point, what solution do you propose?

Should the executive branch agency make decisions by fiat, without due process? The use of due process doesn't make them a judiciary; it's just a more fair way to make decisions within their purview.

Should we move every such judgment out of the executive branch's hands? First, they have to be able to make some decisions.

But the heart of this issue is, as is well known: There aren't nearly enough capacity in the judicial branch to handle all that work. It's a trick to prevent lawful and needed regulation from happening by severely cutting their capacity.

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> There aren't nearly enough capacity in the judicial branch to handle all that work.

Then appoint more Article 3 judges. It could even be the same people who are now "administrative judges"—but take them out of the executive branch hierarchy, and give them the independence that the constitution requires judges to have.

> Instead of the same old talking point, what solution do you propose?

Unnecessarily hostile opening, but full separation of powers as written in the Constitution.

> Should the executive branch agency make decisions by fiat, without due process?

It should not be adjudicating any kind of legal controversy. That is not the role of the executive branch.

> The use of due process doesn't make them a judiciary; it's just a more fair way to make decisions within their purview.

It's very often worse. Executive agencies often have legislative functions, i.e. APA rulemaking, as well judicial functions, e.g. in this matter. The SEC is another one, (see SEC vs Jarkesy currently before SCOTUS).

> Should we move every such judgment out of the executive branch's hands?

Yes.

> But the heart of this issue is, as is well known: There aren't nearly enough capacity in the judicial branch to handle all that work. It's a trick to prevent lawful and needed regulation from happening by severely cutting their capacity.

Total BS.

This whole thing is a misunderstanding of how the US system works. None of this is a legislative function, it is a determination by a rule making body. While I agree that the courts are often overworked and we need to vastly expand the number of judges to make sure cases are heard on time, this isn't the root of the reason the functions of the NLRB or the SEC aren't handled by the judiciary. It's that they're simply not judicial.

Instead, congress has designated some rule making authority to a group of experts, this group of experts is an executive body doing executive work, so it's normally under the executive branch. This body makes rules that have to follow any laws set down by congress, which is one check, and the courts can settle disputes between someone who has to follow the rules and the rule making body, or congress and the rule making body, etc. which is another check. The rule making body makes the initial determination on whether it's rules have been followed not because they're taking on some function of the judicial, but because they're the experts who know what their own rules mean. If they get it wrong, willfully abuse that power, etc. the judicial is still there. It's separation of powers all the way down. If you removed them from the executive and put them in the judicial you'd be giving some judge rule making authority and the ability to interpret those rules later. The whole point is to separate that between two branches of government.

This makes no sense. They are not adjuticating a legal issue, they are investigating whether they should start legal proceedings.

What's your alternative? That they should just sue every company every year so that a judge can decide if that company is doing illegal union busting activities?

> It should not be adjudicating any kind of legal controversy. That is not the role of the executive branch.

Which they aren't doing. They're deciding whether to take Apple to court. If you don't think the executive branch should do that, do you believe the AG's office & the FBI should operate under the judicial branch?

> It's very often worse. Executive agencies often have legislative functions, i.e. APA rulemaking, as well judicial functions, e.g. in this matter. The SEC is another one, (see SEC vs Jarkesy currently before SCOTUS).

Not all rules are laws. Not all judgements are legal judgments. The executive branch is absolutely responsible for making principled decisions, which means rules & judgement. The irony of citing a case where the SEC is before SCOTUS as an example of there not being a separation of powers is... amusing.

And what solution do you propose?

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