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Comment by lolinder | Hacker News Reader

Even if this weren't thrown out, the rule would have been up for re-certification every 4 years with every single presidential election, including this one. Administrative rulemaking is an extremely fragile way to run a country with or without judicial review simply because a single nation-wide election can completely alter the administrative landscape overnight.

Making rules like this is Congress's job not just because some judge says so—it's Congress's job because only Congress can make laws that aren't perpetually at risk of being stripped out when a new party takes power.

I want non-competes to be banned permanently, not just banned until the political winds shift by 5%.

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Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing.

Even if you think the back and forth isn't worthwhile, it's actually not politically avoidable because the other party will still play this game and you end up with a back and forth around an equilibrium further from what you might want.

It's not a popular opinion, but I'm pretty convinced that a few (5<=N<=10) years of administrative rulemaking being handicapped would fix Congress up pretty thoroughly.

Both major parties benefit from the status quo of Congress being incapable and everything being ephemeral—each can promise their stakeholders that if you elect them this cycle they'll make sure that things go their way for this cycle. The ephemeral nature of the "win" is valuable because if they actually made a permanent fix the urgency to elect party Y would be gone. It's the subscription model applied to governance.

My theory is that if you remove the administrative law game, things will quickly get broken enough that stakeholders will demand better, so both parties will get their act together and actually try to pass legislation again.

It's entirely possible that I'm wrong (and cue the inevitable "it's not both sides" comments), but unless something unexpected happens to the court system it looks like we'll get to see in a few years.

A conservative accelerationist who believes that wit will usher in a new era of progressive regulation and long-term social benefit? Now I really have seen everything.

I'm pretty tough to put into a box! Many have tried and failed.

Maybe. Maybe it would lead to other games being played though.

For example, now that the right has the supreme court, it has claimed a lot of extra power over regulatory agencies, elections and even congress. This effectively makes a right wing body the final arbiter; and end run over attempts to get the system working honestly.

I believe reform needs to be a lot more hands on to get things back on track.

Regulatory agencies have power which they were never granted, and the supreme court correctly found that if the executive branch is not granted power to do something (e.g. pass de-facto laws) they they cannot do that. This is a constitutional position, not a partisan position.

If we want laws then we get congress to pass laws. This is how our system works. Congress' dysfunction is not an excuse to end-run around our system, it's a reason to fix congress.

Well, if one party or another thinks the way the current pieces are lying on the board are advantageous to them, I would think it's a reason for them not to fix Congress.

Both parties are disincentivized to actually fix the problem because when unelected bureaucrats in the executive branch make all the rules then nobody is actually held accountable. Then senators and congressmen from both isles get to chain themselves to the fence and viscously bark at the other side with partisan vitrol to drum up support while getting nothing done.

The supreme court literally deferred such duties to regulatory agencies. Congress didn't intervene with bills. That's about as tacit power as you can get.

>Congress' dysfunction is not an excuse to end-run around our system

Sure it is. The whole point of the judicial system is to interpret laws and make rulings based on interpretations. If congress hates that, they need to stop slapfighting.

Meanwhile, I believe executive orders have risen back to 40's/50's era orders (i.e. orders during World wars). Again, Judicial and Congressional can stop it but no one does half the time.

>it's a reason to fix congress.

I'm open to ideas.

> This is a constitutional position, not a partisan position

Every* previous court has disagreed. This is just your opinion. Chevron has been de-facto the way things are done since the early 1900s.

You can disagree with Chevron, but you'd have to be both blind and deaf to think that's not a politically motivated position. At which point, I'm wondering how Hellen Keller got on hacker news.

As a side-note: the constitution is, in fact, up to interpretation. The textualist's interpretation is just one. It is not more correct and, actually, is typically obviously obtuse. I mean, it's a position based on the action of playing dumb.

> ... back on track.

Out of curiosity, is there a point in time where things were clearly "on track"?

IMO, late 2009 / early 2010. The Citizen's United decision by SCOTUS, with a bit of a bump again by SCOTUS in 2013 when they basically nullified majority of the 1965 Voting Rights Act.

Congress is unarguably dysfunctional but (I believe) SCOTUS had a pretty large part in helping them get to where they are today...and in the difficulties involved with getting things back on track.

No, good point! I probably should have said getting things the way most American hope government would work. Or perhaps the way I think government should work, if I'm really being honest.

Based on my limited understanding of American politics, it depends on which side of the Mason–Dixon line you live on and when such a divided was relevant.

> It's not a popular opinion, but I'm pretty convinced that a few (5<=N<=10) years of administrative rulemaking being handicapped would fix Congress up pretty thoroughly.

One party doesn't believe that government should be making laws at all though.

The major parties aren't the Democrats and the Libertarians. Republican voters have plenty of policy items that they would like to become law, and Republican presidential candidates are very fond of promising them to voters and blaming Democratic obstructionism when they don't happen or get rolled back by the new administration.

> Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing.

Which means that the country, through their elected legislature, has not agreed on a policy. Not coming to a new decision doesn’t mean the executive branch gets carte blanche to make up the rules.

Not coming to an agreement means the country is not at enough of an agreement. If it’s truly popular it should pass Congress. If it’s not, it won’t.

And if it’s popular and it doesn’t pass, then there’s always elections to change Congress and try again.

The slow pace is a feature, not a bug.

In addition to what you've said, it's still in the hands of states to do something about it and we, as individuals, have significantly more power to affect change at the state level.

It's 50/50. Yes, ideally it gets punted to the states, the states can mark their preferences (see abortion). What's great about that too is you can move to a state that matches your believies.

The 50/50 part of it - still there is federal vs state jurisdiction. If there's stuff on federal jurisdiction that's just a mess as far as congress never fixing it (say - immigration), states can do this and that about it somewhat (sanctuary city) - they can manage some rotten branches - but they can't touch the rotten root of federal jurisdiction

Frankly, it doesn’t mean that at all. There are myriad issues where a clear majority of the country believes something should be legal or illegal but congress either takes no action or goes against that will. The issue is that these people are far more accountable to those with the money to run their campaigns than to the common peasant the campaign ad targets. Consequently, the will that tends to get realized in congress is slanted heavily towards the interests of money, and of course it is. Lack of noncompete legislation isn’t an example of slow pace, it’s an example of companies that have money slanting politics in their favor to maintain a bit of extra leverage over their workers.

Those issues are largely red herrings. Get into actual policy details and you'll see the consensus disappear.

Marijuana legalization is a great example. It's been consensus that it shouldn't have been as illegal as it was for decades yet it's only been consensus to treat it mostly like alcohol in a handful of states.

The consensus of "something should be done" can predate the consensus of "this should be done" by years or decades, especially nationally.

You know what, this is actually a pretty good point. No politician wants to go out on a limb proposing a specific solution in case some of their demo doesn’t like that particular one.

> Which means that the country, through their elected legislature, has not agreed on a policy.

No, it means that the country has not agreed to the standard demanded by the constitution, which is an insanely high bar not required by virtually any other ostensibly democratic country.

The constitution is obsolete, undemocratic, and does not work in practice. Thus attempts to subvert it are completely legitimate. I don't understand the point of view that if the constitution says we have to do something a certain way, then we must do it that way, because those are The Rules, as if the constitution is some kind of law of nature.

One party is fundamentally against making solutions, regardless of what the solution or problem actually is. They don't want it. Their solution to every problem is "do nothing". Something something free market

OP changed their comment from "making laws" to "making solutions" and now my original comment makes less sense, but it's too late to edit.

Every use of "solutions" in the above comment originally read as "laws", which is what I identified as a nonsensical meme.

This is a meme that's passed around on the left-leaning internet but anyone who has spent any significant amount of time with Republican voters knows it's nonsense. There are a whole ton of laws that Republicans want implemented. I'm not sure if they don't count as laws because left-leaning meme-makers strongly disagree with them or because they truly don't realize that Republicans have opinions besides "big government bad".

To wit:

* Immigration law

* Laws regarding who you can and can't marry

* Laws preventing access to a number of health procedures

* Laws regarding what types of substances you can put into yourself

* Laws forcing big platforms to not censor speech

* Laws enshrining churches as protected institutions

And on and on and on and on. If you listen to these memes you'd get the impression that Republican voters are overwhelmingly libertarian, which couldn't be further from the truth.

You may well disagree with many of the laws that they want (I do), but it's a bit rich to claim that they don't want any laws when the Democratic Party is basically running on a platform of "stop Project 2025".

All those laws you listed are about maintained the status quo or the status quo of a few decades ago, i.e. conservatism.

This isn't creating solutions to problems, this is bringing back or upholding problems from some time ago so we can look at them and do nothing.

This is the fundamental difference between conservative ideology and progressive ideology. Progressives seek solutions to current-day perceived problems, and sometimes the solutions are bad. Conservatives seek to maintain problems, even across generations, sometimes bringing problems of long ago back into reality.

This is why, for example, conservatives brought Jim Crow during the reconstruction era. Is this not regulation? Yes, but it's also a return/continuation of the status quo. It's the opposite of a solution, it's a the problem extended and then actually PROTECTING the problem so it can't be solved. It's an anti-solution.

That's one, really old, example. But take your pick of any during American history and you will see this is always the case. Because that's what defines conservatism as conservatism.

You're not exactly wrong, but it doesn't matter for the purposes of this discussion because the status quo has shifted in each of these cases in ways that are unfavorable to a conservative, which means in practical terms they have to play the same game as the Democrats do. Neither one likes the status quo, which means both have to implement laws, and both currently choose to do so through administrative action rather than something more permanent.

"Stop Project 2025" implies what I'm saying: there is a status quo that the Democrats want to protect and the Republicans want to undo.

> "Stop Project 2025" implies what I'm saying

Kind of, but not really. Because Project 2025 is just a vessel.

You see, conservatives are so dedicated to maintaining problems they will go to the ends of the Earth.

Project 2025 is a power grab, so then that power can be used to maintain the status quo and prevent solutions even more effectively. Of course that will then target transgender individuals, women, gay people probably... whatever is new-ish and we should "go back" on.

So:

> there is a status quo that the Democrats want to protect and the Republicans want to undo

ehh... Republicans want to reverse our positioning and trajectory, and Project 2025 is how they do that. In that sense, republicans are still maintaining the status quo (or the status quo of a few decades ago).

> Which means in practical terms they have to play the same game as the Democrats do

I agree. Both "sides" have to pass laws and use "big government" to get what they want. And then there's libertarians, who don't really exist because even they themselves don't believe their beliefs. So this is what we have.

Yeah, I'm definitely filing this under "hasn't spent much time with conservatives". The equivalent comment from the other side is "liberals are so dedicated to destroying traditional family life they will go to the ends of the Earth".

I spend almost all my time around conservatives. I live in Texas.

What I'm telling you isn't the fringes of conservative belief. It is literally the core, the reason why conservatives are conservative.

To... conserve. That is not only their end goal, but also their ONLY goal. And in order to conserve, you must destroy what has the ability to change things.

If you don't believe me, go back and read Project 2025. It is a vessel, a means to an end. The end being conserving the status quo and strengthening it.

Conservatism is the goal of being something old, doing something old. Progressivism is doing something new.

Again, if you don't agree with that definition, look through the entirety of human history and come back. I mean, just look at gay marriage. Allowing gay marriage is something new, something not done before - the progressives advocated gay marriage. Not allowing gay marriage is old, it is the status quo. Conservatives opposed gay marriage (and still do).

I'm in a small town in rural America in a county that went 80% for Trump in 2020. I grew up in a conservative household steeped in conservative politics. I only stopped voting Republican in 2016.

I don't really care where you live—you don't understand mainstream conservatives, as proven by the fact that you cite Project 2025. Most mainstream conservatives wouldn't have a clue what that document is, and if they did they'd disagree with huge chunks of it. There's a reason Trump has tried to distance himself from it, and it's not to appeal to moderates—it's because it's fringe. Someone who actually listened to conservatives would know that.

I can agree to an extent, mainstream conservatives don't understand what really going on.

But my point stand. They look around, see things are changing, and don't like that. They never stop to examine the actual ground for that change. That's how your average conservative operates, and how your bottom-of-the-barrel conservative operates too.

In that sense, they are fundamentally anti-solution because they're anti-change (specifically, new change)

That, to you, is fringe? I know you don't actually believe that because I know I'm right. This is how conservatives operate, and I don't understand how anyone could debate it.

Yes, the METHOD of Project 2025 is fringe. The GOAL, which is CONSERVING, is not fringe. It's very simple to understand, I've explained it a few times now. The method is the part people are really scared of, because it's the closest the right-wing party in the US has gotten to fascism in a long time.

Where you're wrong is treating conserving as a binary, as though a conservative either wants to conserve everything or nothing and they all agree on the point of time where they want to conserve things.

That's a lazy liberal stereotype of a conservative. There's an equivalent stereotype that is very commonly cited by the other side: "a progressive wants to throw away everything and start from scratch without considering whether some things are worth keeping".

You recognize that statement as a false stereotype. If you don't recognize what you're saying as equally false then you haven't spent enough time around enough conservatives. You seem to have lived among them long enough to disdain them but never actually sought to understand them.

> conservative either wants to conserve everything or nothing

If they want to conserve some stuff but not others, they would be progressives. Because that's what progressives do. In fact, 99% of stuff is conserved with progressives because there's a lot of stuff. Like... a lot. Progressives target that 1% they feel needs change. The rest of human society? Stays.

Now you've found wisdom!

It turns out people tend to disagree less than they think they do—kind of like we share 99% of our DNA with a chimp, a conservative agrees with a progressive on 99% of issues, both about the things that need to change and the things that need to stay.

We just don't talk about those because they're not controversial. When a conservative agrees something needs to be changed they're just stating the obvious. When they disagree, it's obviously because they're opposed to any change ever.

In actuality, a conservative is just someone who disagrees with the current batch of progressives in a particular place about a few specific things that the current progressives want to change in that moment of time. In nearly every case throughout history conservatives are on board with tens of thousands of other changes, there are just a few that spark more resistance for various reasons.

But if congress made the rules it would be in jeopardy every 2 years with every single presidential and midterm election.

The whole reason we have elections is so that people can put into place new leaders who will change rules. There's no such thing as a permanent law, and anyone with two braincells to rub together wouldn't want there to be.

Most congressional seats are not up for election in any given 2-year cycle, so a single 6-month window of support for your side doesn't do the trick—in most cases you have to do that three times over six years in many states, which would tend to mean that the shift in sentiment wasn't ephemeral but was in fact a sustained national shift against the law in question. There are exceptions (2010), but even those are clearly cases where something abnormal was happening at the grassroots level, not just the usual 5% pendulum we see with the presidency.

And then, once you've successfully changed the makeup of Congress to meaningfully slant in your direction, you still have to also control the presidency or at least work with the president in order to get a bill through.

So, yes, Congress can repeal bills that it's put in place. But it takes a lot of work and generally would represent a pretty fundamental shift in voter opinions, which is exactly when laws should change.

468 of the 538 seats in congress, including 100% of house seats, are up for election every 2 years.

On top of this, you don't need to change every seat in congress, you generally only need a tiny handful to flip to switch control - for example at this moment the Senate is 51 to 49 and the house is 220 to 212 (with 3 vacancies). To flip both houses would require only 7 seats to flip, or 1.3% of congressional seats.

The big difference between congressional and executive elections is that congressional changes explicitly do not represent national shifts in voter opinions as they are regional elections. Only a national election can demonstrate a true shift in voter opinions, and when such a shift occurs is exactly when laws should change.

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