Comment by vharuck | Hacker News Reader

Comment by vharuck | Hacker News Reader

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>Chevon deference allowed an end-run around democracy.

I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges. If people dislike how the President is handling EPA rules, they can vote for a different president next time. Or voice their concerns to their elected Congresspeople, who could amend the laws. If SCOTUS rules in a way I strongly disagree with, I'm SOL. And, because of of stare decisis, that ruling is likely to stand for a long time.

>And also led to uncertainty - because these regulations were politically controversial and not supported by law, just by executive branch fiat, they are prone to being revoked whenever the party holding the presidency changes.

Firstly, Chevron Deference required rules to be reasonable interpretations of the law. So it wasn't total fiat. Also, there are other laws that prevent capricious changes. The new rule must be proposed, published, and allowed time for public comment.

Also, Chevron allowed courts to rule on ambiguous matters of law (e.g., how two laws interacted). Because judges are experts in federal laws. But for other questions, such as the dissent's citation of a case over whether a Pacific Northwest colony of squirrels qualified as a separate population from other parts of the country, there's no way I'd trust a judge to understand a crash course on biology, genetics, and ecology delivered by opposing sides in the span of a court case. Now imagine they do this all the time for different subjects. I doubt many judges look forward to these cases.

> I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges.

the "more democratically controlled" members of government are congress, who make the laws, and can make more laws. That's their job – not anyone else's.

Chevron never tied Congress' hands. They always had the ability to amend the law if the Executive branch did something Congress didn't want.

Let's be clear: a lot of these rules are policy decisions. Congress and the Executive are supposed to hash out policy, seeing as they're the only branches controlled by elections. The Judiciary shouldn't have a say. But, without Chevron Deference, policy can be decided by a private party and a judge. That's a terrible way to guide a country.

But in reality, laws are never perfect and all-encompassing. There is nothing wrong with Congress passing a law that says "water must be clean enough to drink", and then leaving it to a pool of experts to define "clean enough to drink" as "free from chemical X, Y, Z..." and to intervene when new chemicals show up.

Expecting the already-clogged lawmaking process to be ready to amend a law every time a new compound ends up in water, is extremely unrealistic.

Congress cannot delegate the lawmaking obligation to unelected agencies.

That's... exactly what this ruling correctly determined; that the power must remain with the people and their representatives.

Then enjoy government efficiency falling off a cliff - and the polluted water that will result from it.

Institutional zealotry is rarely a good thing.

As French, our dual-branch judicial system for a long time seemed very weird to me — I didn’t really see the point of it. I must thank the US to provide a clear example why it is in fact so useful.

In France, the law would be typically written as "The water must be safe to drink. The list of banned chemicals and safety thresholds is to be set by the Supreme Court of the Administrative Branch" (Conseil d’Etat). That way you still do have a judicial oversight of agencies, but with a judicial branch which has more adapted procedures to those issues (for example you don’t have to wait for a case to go all the way up to the Supreme Court to adjudicate — it is literally part of the job of the Supreme Court of the Administrative Branch to be proactive in those matters).

Does Congress “make” laws or does it just push through laws written by lobbyists?

Yes. That is their job, and they've done it.

If they are not happy with how an agency is acting - they have the clear and obvious ability to amend the laws that govern that agency.

Their failure to do so is not arbitrary - it is agreement and faith in the agency they have empowered to act on their behalf.

The courts are now compelling action. Why?

If I am satisfied with how my employees are behaving, I don't chastise them or correct them over minor ambiguities - I leave them alone to continue behaving in a manner I approve of. If I am unsatisfied - I take action to correct the reason I am unsatisfied.

The courts seem to have turned this common sense on its head.

Because the courts merely interpret and reinforce the laws – as written by the people's representatives, not by an unelected official.

The lawmaking body of the land is congress, and they are comprised of a fair representation of the people. That is by design.

> If they are not happy with how an agency is acting - they have the clear and obvious ability to amend the laws that govern that agency.

Changing the law requires a majority in the House and Senate and either a veto-proof majority or the signature of the President. It's not supposed to require only the President.

But now you have a problem. What happens if the law that actually passed is ambiguous? Who resolves the ambiguity?

The courts get the first pass. Then if there is consensus they got it wrong, Congress can change the law. If there isn't consensus they got it wrong then the elected branches are deadlocked and the courts act as the tiebreaker until they reach consensus.

Making the President the tiebreaker is giving way too much power to one person.

> I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges.

Don't they all get voted on by the Senate?

Once.

The President doesn't have much control over these agencies. Congress creates them, provides funds, and consents to the executives who run it. The President has limited power to dismiss, and if they do find cause to fire they still need the consent of Congress yet again.

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