8 ms·

> I'm not sure that there's a realistic way out of the decades-deep hole I'm not either. I think broad-stroke laws reversing much of the damage are necessary.

> I'm not sure that there's a realistic way out of the decades-deep hole I'm not either. I think broad-stroke laws reversing much of the damage are necessary. We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid. Regarding government documents in general, I think everything should be published by default. Instead of FOIA applications to have information published, agencies should be applying to keep their documents secret.

nickff 10y ago
>"We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid." The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and 'advisory opinions', as well as re-interpreting existing rules in very creative ways. What is really needed is greater fidelity to the structural protections by the constitution (such as the Bill of Rights and non-delegation), but I have lost almost all hope of that coming to pass.
- adrianratnapala 10y ago
  The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and simply re-interpreting existing rules in very creative ways Yes, Chikasu's broad-stroke laws can only work if they are part of a cultural shift away from seing micromanagement as the government's job. The agencies are what they are from the mentality that everything in our society must be "run" perhaps by a "czar". People call this regulation, but in order to run things, the authorities need not laws and predictable rules, but arbitrary (if scope-limited) powers.
- caseysoftware 10y ago
  This is why "term limits" sound great in theory but are worthless in practice. The people who are writing these laws by another name (guidance letters, recommendations, etc) are nameless, faceless people who no one will ever know. And unless it's an official "memorandum of understanding" or similar, we won't even know their names. The people we see and hear in the news are just the distraction so we miss the real show.
  - zanny 10y ago
    This can only happen when you lack accountability and actual representation in a republic. I've concluded that the general chain of reasoning is this: Unrepresented -> Corruption -> Money -> Corporate Influence -> Gerrymandering / First Past the Post / Term Limits -> Whole election system is fucked The way the US, and most other governments, are organized is broken because of a lack of humanity. If you try having one person represent millions, those millions will always be numbers to anyone, and that person will just be a name on a ballot to the numbers. Real representation requires a personal relationship, and that means you need to build government on the foundation of your community first. I generally see every position added to the ballot as a failure of a republic, because what you really should be doing is electing, say, a regional council (using STV or other proportional voting systems) whom then both nominates higher offices and appoints everything you would normally have on the ballot. Because that is their job, and you would not be picking between the lesser of two evils on a ticket but one of a few hundred of your neighbors who is exemplary who would do the best job. Most people I know, at least in less dense neighborhoods (and community interaction in cities and dense living always has been problematic) can name someone who lives around them they would want to represent them in government. And you are much more likely to have reason to trust, and hold responsible, your neighbor than some guy who lives in the richest part of the city, state, or country and whom you will never meet in person, and they will never know you to give a damn about your liberty.
    - mahyarm 10y ago
      You have synchronization problems when every hill has it's own fiefdom. You get political deadlock, effective NIMBYism, corruption too small to get sunlight repeated at every hill, and things like making a metro transit system impossible because 60 municipalities can't work together. Just think about the general issues of a HOA gone bad and how hard it can be to deal with it without great personal cost. That is the problem of micro government in a nutshell. Scalable government is a hard problem in general.
      - rhizome 10y ago
        We've been seeing this in practice as the spotlight has shone on the white-flight enclaves in and around St. Louis after the Michael Brown killing.
- gohrt 10y ago
  Are 'guidance letters' and 'advisory opinions' secret?
  - rayiner 10y ago
    No. And they're also not legally binding. And an agency treating guidance as legally binding is also a great way to get the guidance overturned in court, because there are strict legal requirements for the procedures agencies must follow before issuing binding rules.
    - rhizome 10y ago
      Can a person be fired from their government job for refusing to adhere to a guidance letter or opinion?
      - rayiner 10y ago
        Almost certainly, but that's true for any employee refusing to follow an instruction from an employer.
        rhizome 10y ago
        Seems like they become de facto law at that point.
        rayiner 10y ago
        Not at all. A "law" is where the government tells you or I what to do in its capacity as the government. These directives are where the government leadership tells its own organs and employees what to do in their capacity as leaders of a large organization.
        rhizome 10y ago
        Right, I know how the legalistic mind works. My point is about where "its own organs and employees" meets the citizenry. Leadership means these things permeate the org chart, and you can't segregate this stuff into a closed box of "their capacity as leaders."
TelmoMenezes 10y ago
> We need a law prohibiting secret law. I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ultimately rests on the same western civilization ideas that already come from the Roman Empire and before. Surely your constitution or other fundamental laws should already cover this, or am I wrong?
- nickff 10y ago
  If you strictly interpret the constitution, a great deal of federal agencies and actions are clearly disallowed, but these restrictions have been gradually eroded (most notably during and since the 1930s). The US government is supposed to be one of enumerated powers, and it was never granted the power to create anything like the Department of Health and Human Services, the Department of Education, or the Federal Electoral Commission. There is no provision for any warrant-less searches (which violate the Fourth Amendment), and campaign finance laws clearly violate the First Amendment (strictly read). Delegation of the power to criminalize activities is also not allowed by the constitution, yet there are thousands of regulatory crimes. The Tenth Amendment is clearly a dead-letter now.
  - nathanaldensr 10y ago
    The Constitution is simply a means to an end now; it's merely a political talking point. It stopped being the actual basis for ethical, legal governing a long time ago. If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
    - dwe3000 10y ago
      I think your analogy is a little misleading. In my opinion, the foundation is still strong, but where the foundation was for one shape of house, the additions and changes made on top of the foundation are unstable. I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.
    - 10y ago
oldmanjay 10y ago
Why would you give them 18 months to do whatever they wanted? A loophole you can use to park a container ship seems to miss the point.
rayiner 10y ago
> We need a law prohibiting secret law. We don't need a law for that, because non-public directives already don't have the force of law. Agencies already go through an extraordinarily involved process any time they make binding legal obligations. They are not only published, but usually the subject of notice and comment procedures and are subject to extensive judicial review. Those processes don't apply to what the article is talking about, because the article calls "law" what is actually legal advice to the government about what is legal or not under existing laws. Like any organization, the government has counsel. The government asks that counsel "can we do this?" The answers to those questions are not law, they're legal advice.
- chishaku 10y ago
  The article and the report it refers to describe multiple categories of directives and opinions/judgements that apparently do have the force of law. Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of classified reports by reference, bestowing on them the status of law." https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law.pdf https://www.brennancenter.org/sites/default/files/publicatio... I think we need a law to ensure that all such documents are published in a timely manner.
  - rayiner 10y ago
    National security directives set policy and instruct government bodies. They're an exercise of the President's plenary authority to tell the executive branch what to do, not lawmaking. OLC legal interpretations are legal advice, not laws. Federal agencies may rely on those interpretations to take certain actions, but they cannot regulate private conduct. Congressional-executive agreements pertain to controlling trade policy, an area over which Congress and the President have plenary authority to begin with. Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA. Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.

nickff 10y ago

>"We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid." The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and 'advisory opinions', as well as re-interpreting existing rules in very creative ways. What is really needed is greater fidelity to the structural protections by the constitution (such as the Bill of Rights and non-delegation), but I have lost almost all hope of that coming to pass.

adrianratnapala 10y ago
The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and simply re-interpreting existing rules in very creative ways Yes, Chikasu's broad-stroke laws can only work if they are part of a cultural shift away from seing micromanagement as the government's job. The agencies are what they are from the mentality that everything in our society must be "run" perhaps by a "czar". People call this regulation, but in order to run things, the authorities need not laws and predictable rules, but arbitrary (if scope-limited) powers.
caseysoftware 10y ago
This is why "term limits" sound great in theory but are worthless in practice. The people who are writing these laws by another name (guidance letters, recommendations, etc) are nameless, faceless people who no one will ever know. And unless it's an official "memorandum of understanding" or similar, we won't even know their names. The people we see and hear in the news are just the distraction so we miss the real show.
- zanny 10y ago
  This can only happen when you lack accountability and actual representation in a republic. I've concluded that the general chain of reasoning is this: Unrepresented -> Corruption -> Money -> Corporate Influence -> Gerrymandering / First Past the Post / Term Limits -> Whole election system is fucked The way the US, and most other governments, are organized is broken because of a lack of humanity. If you try having one person represent millions, those millions will always be numbers to anyone, and that person will just be a name on a ballot to the numbers. Real representation requires a personal relationship, and that means you need to build government on the foundation of your community first. I generally see every position added to the ballot as a failure of a republic, because what you really should be doing is electing, say, a regional council (using STV or other proportional voting systems) whom then both nominates higher offices and appoints everything you would normally have on the ballot. Because that is their job, and you would not be picking between the lesser of two evils on a ticket but one of a few hundred of your neighbors who is exemplary who would do the best job. Most people I know, at least in less dense neighborhoods (and community interaction in cities and dense living always has been problematic) can name someone who lives around them they would want to represent them in government. And you are much more likely to have reason to trust, and hold responsible, your neighbor than some guy who lives in the richest part of the city, state, or country and whom you will never meet in person, and they will never know you to give a damn about your liberty.
  - mahyarm 10y ago
    You have synchronization problems when every hill has it's own fiefdom. You get political deadlock, effective NIMBYism, corruption too small to get sunlight repeated at every hill, and things like making a metro transit system impossible because 60 municipalities can't work together. Just think about the general issues of a HOA gone bad and how hard it can be to deal with it without great personal cost. That is the problem of micro government in a nutshell. Scalable government is a hard problem in general.
    - rhizome 10y ago
      We've been seeing this in practice as the spotlight has shone on the white-flight enclaves in and around St. Louis after the Michael Brown killing.
gohrt 10y ago
Are 'guidance letters' and 'advisory opinions' secret?
- rayiner 10y ago
  No. And they're also not legally binding. And an agency treating guidance as legally binding is also a great way to get the guidance overturned in court, because there are strict legal requirements for the procedures agencies must follow before issuing binding rules.
  - rhizome 10y ago
    Can a person be fired from their government job for refusing to adhere to a guidance letter or opinion?
    - rayiner 10y ago
      Almost certainly, but that's true for any employee refusing to follow an instruction from an employer.
      - rhizome 10y ago
        Seems like they become de facto law at that point.
        rayiner 10y ago
        Not at all. A "law" is where the government tells you or I what to do in its capacity as the government. These directives are where the government leadership tells its own organs and employees what to do in their capacity as leaders of a large organization.
        rhizome 10y ago
        Right, I know how the legalistic mind works. My point is about where "its own organs and employees" meets the citizenry. Leadership means these things permeate the org chart, and you can't segregate this stuff into a closed box of "their capacity as leaders."

TelmoMenezes 10y ago

> We need a law prohibiting secret law. I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ultimately rests on the same western civilization ideas that already come from the Roman Empire and before. Surely your constitution or other fundamental laws should already cover this, or am I wrong?

nickff 10y ago
If you strictly interpret the constitution, a great deal of federal agencies and actions are clearly disallowed, but these restrictions have been gradually eroded (most notably during and since the 1930s). The US government is supposed to be one of enumerated powers, and it was never granted the power to create anything like the Department of Health and Human Services, the Department of Education, or the Federal Electoral Commission. There is no provision for any warrant-less searches (which violate the Fourth Amendment), and campaign finance laws clearly violate the First Amendment (strictly read). Delegation of the power to criminalize activities is also not allowed by the constitution, yet there are thousands of regulatory crimes. The Tenth Amendment is clearly a dead-letter now.
- nathanaldensr 10y ago
  The Constitution is simply a means to an end now; it's merely a political talking point. It stopped being the actual basis for ethical, legal governing a long time ago. If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
  - dwe3000 10y ago
    I think your analogy is a little misleading. In my opinion, the foundation is still strong, but where the foundation was for one shape of house, the additions and changes made on top of the foundation are unstable. I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.
  - 10y ago

oldmanjay 10y ago

Why would you give them 18 months to do whatever they wanted? A loophole you can use to park a container ship seems to miss the point.

rayiner 10y ago

> We need a law prohibiting secret law. We don't need a law for that, because non-public directives already don't have the force of law. Agencies already go through an extraordinarily involved process any time they make binding legal obligations. They are not only published, but usually the subject of notice and comment procedures and are subject to extensive judicial review. Those processes don't apply to what the article is talking about, because the article calls "law" what is actually legal advice to the government about what is legal or not under existing laws. Like any organization, the government has counsel. The government asks that counsel "can we do this?" The answers to those questions are not law, they're legal advice.

chishaku 10y ago
The article and the report it refers to describe multiple categories of directives and opinions/judgements that apparently do have the force of law. Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of classified reports by reference, bestowing on them the status of law." https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law.pdf https://www.brennancenter.org/sites/default/files/publicatio... I think we need a law to ensure that all such documents are published in a timely manner.
- rayiner 10y ago
  National security directives set policy and instruct government bodies. They're an exercise of the President's plenary authority to tell the executive branch what to do, not lawmaking. OLC legal interpretations are legal advice, not laws. Federal agencies may rely on those interpretations to take certain actions, but they cannot regulate private conduct. Congressional-executive agreements pertain to controlling trade policy, an area over which Congress and the President have plenary authority to begin with. Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA. Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.