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Comment by treetalker | Hacker News Reader

A grander theme is seeing the effects of the Loper Bright decision and the end of Chevron (and certain other, but not all, forms of) deference to administrative agencies.

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Any thoughts about why I should, on the advent of a second Trump administration, be dismayed about a lack of deference to executive agencies?

The inability of executive agencies to create regulations will extend beyond one presidential administration. Given that conservative administrations tend to favor cutting regulations anyway, this jurisprudence will likely impact liberal administrations more than conservative ones.

"conservative administrations tend to favor cutting regulations"- citation needed. They favor looking like they do, but end up putting in punitive regulations that only the large entrenched, conservative owned companies can afford to comply with, stifling competition from below.

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Sure. Off the top of my head, consider the nontechnical, non-expert representatives and senators in the upcoming Congress — who, now that Chevron deference is gone, will have to fill in gaps and cure problems caused by adverse or simply wrong decisions by the members of the judiciary (who are also nontechnical and non-expert in the various fields covered by the agencies). If Congress can pass anything, let alone get it signed into law, that is.

Also consider the more-independent agencies, whose boards don't necessarily change composition when the executive administration does.

I mean this entirely in a non-political way, too: I'm playing devil's advocate.

Apropos of the first point, though, do you trust MTG (for example) to engage in wise gap-filling or overriding of the judiciary when it comes to, say, net neutrality or Schedule I drugs?

That's not a snarky question: it's a rhetorical one, only to respond to your point.

As a matter of public choice theory I think that over the long haul it is better to trust MTG than to imply expansive powers for unelected administrative staff. I think those delegations are often quite good, but best when construed narrowly.

Science and technology change rapidly, leaving interstitial gaps that often need quick policy-filling — difficult for most Congresses, next to impossible for the forthcoming one. Likewise, the judiciary does the damndest things and sometimes needs to be overridden or worked around quickly — and by someone who knows what they're talking about.

I see both sides of the issue. Truth be told, the Constitution does not provide for a fourth branch of government. But agencies are so ingrained in our fabric that they're not going anywhere anytime soon.

If Net Neutrality is a test case for whether science moves too fast for a bona fide, representative legislative process and should be handled instead by broad grants of power to executive appointees, then I'm comfortable picking the side of Congress over the administrative state. I think we probably agree, though, there are better cases to highlight the utility of regulations over laws!

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