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Comment by neaden | Hacker News Reader

The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation. If this was really bad then you should take it up with the legislature to change the laws.

This goes into a core misunderstanding I think a lot of Americans have, that we have three co-equal branches of government. That was not the intention, the Legislature is supposed to be the most powerful, creating laws and with the authority to impeach the other two branches, who have no way of removing legislatures. Over time the other two branches have been accumulating power that should belong to the legislature, and I see this as yet another example.

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> The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation.

That gets to the deeper problem..

If you have one group that is in charge of creating the rules, interpreting the rules, and enforcing the rules, you can't trust the process is independent and there's equal treatment.

If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

Legislatures delegating their authority diminishes their office, blurs lines of authority, and lets them abdicate responsibility.

> If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

The way our system is set up, they generally don't have time to do a good job under a), and leaving things alone under b) would clear the field for polluters, fraudsters, etc.

Someone upthread said that Chevron deference is a useful hack; that's absolutely right. Sure, there's technical debt there, but the power structure and individual incentives for legislators have made the hack a useful way to keep the system running.

> the power structure and individual incentives for legislators have made the hack a useful way to keep the system running

And abdicate responsibility from people we can hold accountable via elections to anonymous bureaucrats that may be knowledgable in their fields but we'd never know it.

If it's important, Congress should be willing to write it into law (or amend the Constitution?) instead of depending on a 40 year old hot fix.

> Congress should be willing to write it into law (or amend the Constitution?)

That'd be the preferred solution, but given the existing incentives, it's almost certainly not going to happen.

It's a version of the installed-base problem: The existing House members and senators got where they are through the existing system, and it's not at all in their personal interests to make major changes.

It's also akin to the software rule that scrapping a running system and rewriting it "the right way!" is dangerous, because the running system (hacks and all) encodes a lot of hard-won knowledge about edge- and corner cases, bottlenecks, etc. In politics, it's especially true, because we have so many different players — with often-conflicting interests — who have very different ideas of what "the right way" would be. "Refactoring" is the best we can realistically hope for.

> If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

That's why we have Congressional hearings, etc. It's not like the legislature makes laws in a locked room, consulting nothing but their own minds.

>If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

Or c) set aside budget to fund their own infra and pool of expertise to enable members of the Branch to conduct legislative business competently, and most importantly, independently, of the other two branches, like was the original intent behind the Library of Congress.

>If you have one group that is in charge of creating the rules, interpreting the rules, and enforcing the rules, you can't trust the process is independent and there's equal treatment.

You don't have to trust them. You can sue them for not going through a rulemaking process that includes publishing proposed rules and reviewing public comment, or for a rule that "was arbitrary, capricious, or an abuse of discretion."

https://www.federalregister.gov/uploads/2011/01/the_rulemaki...

That happens a lot. The first two (was it three?) travel bans during the Trump term were struck down this way.

>Legislatures delegating their authority diminishes their office, blurs lines of authority, and lets them abdicate responsibility.

Then they should be replaced at the ballot box with legislators who will reclaim the duty to author the rules. Why is the Supreme Court the entity to force this change and ignore the intent of Congress?

> You can sue them for not going through a rulemaking process that includes publishing proposed rules and reviewing public comment, or for a rule that "was arbitrary, capricious, or an abuse of discretion."

Or you can remember that the Executive Branch's job is to enforce the laws, not write them.

> keep their hands out of it

This. I do not think it is appropriate for legislators to delegate as broadly as they have. The default should be for them to not pass laws, if they don’t have time to understand the issues. Instead, they are basically creating new legislative branches under the executive branch.

It is much worse than just creating a legislative branch under the executive. Executive agencies are judge, jury, and executioner when it comes to their rules. They have their own enforcement teams, courts, and make up their own penalties for violating the rules they made up. They are like a government inside the Constitutional government.

The government is required to give everybody a speedy trial with a jury of their peers. Fines are also required to not be excessive. Violate an executive agency rule and you will not get what is required by the Constitution.

> The default should be for them to not pass laws, if they don’t have time to understand the issues.

That’s insanity. Why wait when you can have a regulatory body dedicated to understanding and regulating based on those understanding. If they fuck up , the delegating power has the ability to rein it in.

>If they fuck up , the delegating power has the ability to rein it in.

We synonimize "an Act of Congress" with something long, drawn out, and ardorous for a reason. With that ability to rein in locked behind gaining the buy in of the rest of the Congress, it leaves an Executive Agency able to play "scope chicken" with the Congress.

Making law is Congress's job. Id a rule needs making, the Legislature should have in place the framework to handle the act of rulemaking; but importantly, seperately from the enforcement mechanism. The Judiciary should equivalently accommodate a venue for redress of grievance w.r.t interpretations in play.

Failure to do the above without the seperation of power is a failure to govern.

Then they can consult with experts, put it in a bill, and vote on it, instead of leaving it up to later extra-legislative discretion from political appointees with questionable expertise.

It sounds like you're referring to Locke's view on separation of power? He did hold legislative power supreme over the others like you say, but also noted that legislative power derives its authority from the people (consent of the governed), who have the right to make and unmake the legislature.

> And when the people have said we will submit to rules, and be governed by laws made by such men... nobody else can say other men shall make laws for them; nor can the people be bound by any laws but as such as are enacted by those whom they have chosen, and authorized to make laws for them.

Representation is now extremely poor in the United States. Colonial Americans enjoyed better representation on paper (though virtual) than the average American does today. People have better representation in Commie China. We're an extreme outlier among OECD countries, with over 700k constituents per rep. Compare Nordic countries, with more like 40k per rep, closer to the U.S. in the late 1700s and early 1800s. The only act of Congress I advocate for is repealing the "Permanent" Apportionment Act of 1929.

That doesn’t solve the problem; how do you decide the ambiguity in the meantime? (Concretely, some court is evaluating a dispute. Does the EPA have the right to decree X, or not?)

In the U.S., the federal government only has powers that have been explicitly allocated by the sovereign (the People). The executive, under the guise of any three letters, can't "decree" shit beyond EOs. The President has enforcement and federative powers, not legislative.

>by the sovereign (the People)

This is a mere magick trick that can only ultimately be enforced by private firearms.

You do not hold allodial title to the things which you need to live. You can be involuntarily caged for long periods for mere possession of materials or objects. You are a subject, not a sovereign. Try protecting yourself from kidnap by an enforcer next time he catches you with a joint, you will be swiftly escalated to execution if you successfully fight off application of chains. You are not sovereign if your choices are death or obedience (even to the god/religion "The Law").

Our system kills sovereigns systematically and convinces its subjects they're sovereign (they're not) in order to lessen the odds said subjects learn from the state and get violent against its enforcers. Democracy did not help us: it helps the ruling elite by playing a magick trick on you, convincing you to give up violent power and accept the unacceptable because "We have rules and a system, and you agreed to those rules so tough nuts! You've got a chance for change next election cycle."

Its original intent was noble, but seriously try BSing me that we have any effect after the comedic horror show last night...

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