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The constitution was written 4 centuries ago. None of this could’ve been predicted and the SCOTUS is allowed to reinterpret it.

• rayiner 3y ago
  The Constitution was written 235 years ago. Even defenders of the administrative state do not argue that the Supreme Court can simply “reinterpret” the Constitution to allow executive agencies to make law. That’s too intellectually dishonest even for the “living Constitution” folks. Instead, they rely on legal fictions to distinguish administrative rules from laws. And in some cases, to be fair, that legal fiction suffices. Congress can outlaw harmful drugs and then have the executive make lists of which drugs are harmful. But in many cases, the rules being made by agencies are indistinguishable from laws. The funny thing is that there’s a couple of agencies that actually respect the distinction between administrative rules and laws, because they date back to the early republic. The USPTO, for example, has all sorts of rules governing the administrative process of getting a patent. But it doesn’t have the power to make or change patent law. It can’t make legislative decisions, such as deciding that patents should be valid for a longer or shorter amount of time. Congress must do that.
  • alphabettsy 3y ago
    > The USPTO, for example, has all sorts of rules governing the administrative process of getting a patent. But it doesn’t have the power to make or change patent law. It can’t make legislative decisions, such as deciding that patents should be valid for a longer or shorter amount of time. This is true of every other agency as well. They can changes rules, not laws and the rules do not supersede the law.