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Popularity isn't always a reasoned basis for choosing one policy over another, no. But sometimes the priorities of the public as expressed through comment can a

Popularity isn't always a reasoned basis for choosing one policy over another, no. But sometimes the priorities of the public as expressed through comment can absolutely be an element of reasoned decision making, when the experts have validated multiple approaches as acceptable and the issue has as much direct impact on & interest for the public as net neutrality. Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. The independence of agencies like the FCC is meant to be independence from any individual President, so that the commissioners are less responsive to the whims of the politicians than the regular executive departments. This is why there are commissioners from both major parties, why their terms of office are longer than a presidential term of office, and why they can only be removed from office for cause rather than merely for making a decision the President didn't like. Your argument that they should defer to the wishes of the executive is exactly counter to the structure and purpose of how they're set up (even if I admit they're less independent in practice than in theory). As a point of comparison, regular executive departments are headed by a single political appointee of the president's party, who customarily offers to resign when a new party enters the White House, and who can be fired with no notice for any reason or no reason.

rayiner 8y ago
> Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. I don’t see how that’s a reasoned basis for picking one versus the other. If a court did that, would you say that was a reasoned decision? (“We have these two competing interpretations of the 14th amendment. The majority of the public opposes interracial marriage, so we will pick the interpretation that allows states to ban it.”) As to your other point, independent agencies are set up so that the President can’t micromanage specific policies. But the heads are nominated by the president precisely so the executive can set the overall regulatory agenda and philosophies. Remember the context in which the APA was created. The government regulated things like what routes freight trucks could run and the prices. You didn’t want direct executive control over those things. But broad agendas, such as ensuring more freight service to the Midwest? That was squarely within the administration’s power to influence the agency.
- jkaplowitz 8y ago
  Courts do indeed reverse some of their rulings over time based on changing attitudes, sometimes with explicit reference to public opinion in their reasoning. So do regulatory agencies both independent and departmental. The 14th Amendment example is about statutory/constitutional interpretation, whereas the type of ruling we're discussing here is not. Agency regulations (and common law rulings by courts) often make policy judgments among multiple valid possibilities. Sometimes public attitudes appropriately affect the policy judgment, though of course not always. Of course agencies and courts don't make popular opinion the primary driver of their rulings, even when they consider it. And I'm certainly not suggesting they should. As for why the APA was created, that's a very complex question, but that seems more about systematizing the regulatory rulemaking process as delegated from Congress than about the difference between an independent agency and an executive department (both of which are governed by the APA). We're talking about the kind here that's supposedly independent.

rayiner 8y ago

> Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. I don’t see how that’s a reasoned basis for picking one versus the other. If a court did that, would you say that was a reasoned decision? (“We have these two competing interpretations of the 14th amendment. The majority of the public opposes interracial marriage, so we will pick the interpretation that allows states to ban it.”) As to your other point, independent agencies are set up so that the President can’t micromanage specific policies. But the heads are nominated by the president precisely so the executive can set the overall regulatory agenda and philosophies. Remember the context in which the APA was created. The government regulated things like what routes freight trucks could run and the prices. You didn’t want direct executive control over those things. But broad agendas, such as ensuring more freight service to the Midwest? That was squarely within the administration’s power to influence the agency.

jkaplowitz 8y ago
Courts do indeed reverse some of their rulings over time based on changing attitudes, sometimes with explicit reference to public opinion in their reasoning. So do regulatory agencies both independent and departmental. The 14th Amendment example is about statutory/constitutional interpretation, whereas the type of ruling we're discussing here is not. Agency regulations (and common law rulings by courts) often make policy judgments among multiple valid possibilities. Sometimes public attitudes appropriately affect the policy judgment, though of course not always. Of course agencies and courts don't make popular opinion the primary driver of their rulings, even when they consider it. And I'm certainly not suggesting they should. As for why the APA was created, that's a very complex question, but that seems more about systematizing the regulatory rulemaking process as delegated from Congress than about the difference between an independent agency and an executive department (both of which are governed by the APA). We're talking about the kind here that's supposedly independent.