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The powers of administrative agencies come from their organic enabling act, which is passed by congress. In many cases, agencies cannot pass categorical bans on

The powers of administrative agencies come from their organic enabling act, which is passed by congress. In many cases, agencies cannot pass categorical bans on harmful things or practices because they don't have that ability. Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress. Where agencies act ultra vires, beyond their power, SCOTUS will frequently rule what they did unconstitutional. But they are in themselves constitutional, and saying otherwise smacks of the same arguments people make when they say that income taxes are illegal. i.e. it discredits the person making the statement.

AnthonyMouse 10y ago
> Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress. There is a difference between what the courts have ruled and what the constitution actually says. The significance of the difference being that when the courts have it wrong, you can sometimes convince them to change their minds. Or at some point different justices are appointed with different opinions. Roe v. Wade is long-established precedent but that doesn't mean it hasn't been a major consideration when appointing justices to the Supreme Court. And there is a completely reasonable way to have "administrative agencies" without making them part of the executive -- you make them part of the legislature, in the nature of the CBO. The difference being that after they propose new rules, Congress would vote to approve them or not. Which in most cases could be a rubber stamp but it would give Congress the opportunity to say no when it matters, and get the executive branch entirely out of the rulemaking business.
rayiner 10y ago
There are a lot of scholars who think the current administrative state is not constitutional. The Supreme Court upholding administrative agencies are not well reasoned. Two are New Deal era cases, and Mistretta is a results-oriented bit of hand waving: "Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." Obviously the practical needs of Congress has no bearing on whether a delegation of legislative power is constitutional.
- Frondo 10y ago
  Can you name a few of these scholars? This is a body of legal thinking I've never been exposed to before. I'd like to see who/what you're talking about.
  - rayiner 10y ago
    Gary Lawson wrote the Administrative Law textbook we used at Northwestern: http://www.jstor.org/stable/1341842?seq=1#page_scan_tab_contents http://www.jstor.org/stable/1341842?seq=1#page_scan_tab_cont....

AnthonyMouse 10y ago

> Regarding your second point, at this point that's not really debatable. SCOTUS has consistently ruled that admin agencies are constitutional within the legislative intent of Congress. There is a difference between what the courts have ruled and what the constitution actually says. The significance of the difference being that when the courts have it wrong, you can sometimes convince them to change their minds. Or at some point different justices are appointed with different opinions. Roe v. Wade is long-established precedent but that doesn't mean it hasn't been a major consideration when appointing justices to the Supreme Court. And there is a completely reasonable way to have "administrative agencies" without making them part of the executive -- you make them part of the legislature, in the nature of the CBO. The difference being that after they propose new rules, Congress would vote to approve them or not. Which in most cases could be a rubber stamp but it would give Congress the opportunity to say no when it matters, and get the executive branch entirely out of the rulemaking business.

rayiner 10y ago

There are a lot of scholars who think the current administrative state is not constitutional. The Supreme Court upholding administrative agencies are not well reasoned. Two are New Deal era cases, and Mistretta is a results-oriented bit of hand waving: "Applying this "intelligible principle" test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." Obviously the practical needs of Congress has no bearing on whether a delegation of legislative power is constitutional.

Frondo 10y ago
Can you name a few of these scholars? This is a body of legal thinking I've never been exposed to before. I'd like to see who/what you're talking about.
- rayiner 10y ago
  Gary Lawson wrote the Administrative Law textbook we used at Northwestern: http://www.jstor.org/stable/1341842?seq=1#page_scan_tab_contents http://www.jstor.org/stable/1341842?seq=1#page_scan_tab_cont....