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I am 100% for this, but it makes me sad that the legislative branch has nearly completely abandoned its duty to pass laws in favor of granting the executive bra

I am 100% for this, but it makes me sad that the legislative branch has nearly completely abandoned its duty to pass laws in favor of granting the executive branch the authority to regulate just about everything. This is a problem for two main reasons: 1. The executive branch can unilaterally revoke these regulations, making them more volatile. Maybe my non-compete is invalid today, but will it be in 4 years when I actually want to change jobs? Changing a law takes approval of either majority of both chambers plus the president, or a supermajority of both chambers. 2. It lowers the stakes in congress, which I believe causes more misbehavior. When the stakes are actually high enough, congress tends to get things done. When the stakes are low, congress grandstands for reelection.

deleted 3y ago
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jjtheblunt 3y ago
> The executive branch can unilaterally revoke these regulations The US Constitution + amendments delineates the powers of the branches. Is the situation you describe possibly a window in time when executive branch constitutional overreach has not been yet challenged? [ edit : great explanations below -> sincere thanks ]
- mattmaroon 3y ago
  It’s not overreach, it’s delegation by Congress to the executive parent is discussing. Congress often gives the executive the right to regulate things instead of regulating it themselves, and it’s a controversial topic.
- aidenn0 3y ago
  Congress created the FTC, congress could eliminate or curtail the FTC's power. Some have argued that it's unconstitutional for congress to give away its power (even conditionally) in this way, but AFAIK that's a rather fringe legal theory. Certainly the FTC has existed for over 100 years at this point, so there's been plenty of time to challenge it.
  - no_wizard 3y ago
    The same fringe legal theory that is likely to win in the Chevron Deference case[0] before the Supreme court, which will gut agencies (including the FTCs) ability to regulate things in this manner? [0]: https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/ https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
    - aidenn0 3y ago
      Not even remotely the same legal theory; the theory there is that the courts should be able to review regulations the agencies make for e.g. if there were less burdensome ways to accomplish the same goal even when the regulations themselves are "reasonable"
  - cryptonector 3y ago
    The major questions doctrine announced in W. Virginia vs. EPA, and the upcoming, likely reversal of Chevron together will greatly limit the Congress' ability delegate power broadly to the Executive. You might call that a "fringe legal theory", but it seems poised to be the legal theory of the land.
- cryptonector 3y ago
  Live by regulation, die by regulation. GP's point is that since this rule is made by this Administration, the next Administration could undo it. GP is right. As long as one Administration has the power delegated to it by Congress, and so does the next one, then the next one can change and even reverse the previous one(s)' regulations. The court recently found (in W. Virginia vs. EPA) that Congress cannot delegate power in "major questions". This rule might not be a "major question", but given the vagueness of the statutory foundation of the FTC, it's possible that all of the FTC's work is on thin ice. The Court would likely not rule the whole FTC and its past regulations unconstitutional, but it might start looking askance at regulations that seem remotely like major questions. Is this rule a "major question"? I don't know, but I'm inclined to think "no".
mattmaroon 3y ago
While your points are good, on the other hand, Congress at this point is totally broken, it’s hard to imagine it becoming unbroken (since it would require an amendment which is usually passed by Congress and they have no desire to make things harder for themselves), and it’s beholden to special interests in a way that the executive branch often isn’t. So at least this way, things can get done.
- cryptonector 3y ago
  > Congress at this point is totally broken If Congress can delegate authority at will and with tremendous vagueness vagueness (as in the case of the FTC) then that allows Congress to be more disfunctional. If the Court reverses Chevron and later guts the FTC then Congress will have to get its act together -- they might not, but if they do then the Court will have helped us enormously.
  - mattmaroon 3y ago
    I don’t agree with that mental model because it assumes Congress has to make sure the job gets done. They don’t. They can be as dysfunctional as they want. Polls show that the vast majority of people are unhappy with Congress, and yet they get re-elected at very high rates. There’s no real reason to suspect that their job performance had anything to do with getting elected anymore. They could very easily just fail to regulate everything that actually needs it. The alternative to the FTC isn’t Congress doing the regulation, it’s no regulation at all. Perhaps I’m overly pessimistic but I think we’ve gotten to a point where gerrymandering has just broken Congress irreparably by divorcing their job security from their effectiveness. I hope I’m wrong and you’re right.
    - cryptonector 3y ago
      Perhaps we have reached the scalability limit of the Founders' scheme.
brigadier132 3y ago
> completely abandoned its duty to pass laws That's the duty of the legislature? To make more rules?
- deleted 3y ago
  [deleted]
- aidenn0 3y ago
  Pass, repeal, and revise laws, yes. That's literally what the word "legislator" means.
  - brigadier132 3y ago
    Legislator is a person that can write laws, it does not mean it's their duty to write laws. In the United States their duty is to uphold the constitution and represent their constituents. Not to create more rules.
    - aidenn0 3y ago
      Unless their constituents think the current laws of the land are 100% perfect, then representing their constituents would involve passing laws.
      - brigadier132 3y ago
        And they would need to convince enough other representatives and the constituents those representatives represent, which they can't because the country is extremely divided.
    - saurik 3y ago
      I don't think the point is they have to spend their time writing more rules if they don't feel they have to, but they are the ones who would do it: with respect to the rules and policies and procedures of our government, we have a legislative branch that is supposed to draft and maintain them, an executive branch that is supposed to implement and enforce them, and a judicial branch that is supposed to interpret and adjudicate them... only, the boundary between the first and second (and arguably also the second and third) of those branches is a bit blurred as congress keeps writing vague laws that say "there shall be an agency which will prevent X" where X is something extremely high-level like "unfair business practices" and then the executive branch is forced to figure out what that means, and in the process is effectively doing the wrong jobs :/.
snapetom 3y ago
This has been a problem for decades. Congress' focus is more on self-preservation than good policy. For example, granting abortion rights through case law was always incredibly tenuous and now that's been proven. I predict this will be kicked around the executive branch and bounced in courts. Even if it stands, like you point out, future administrations can just revoke it. All the while, Congress should be taking action and codifying this.

deleted 3y ago

[deleted]

jjtheblunt 3y ago

> The executive branch can unilaterally revoke these regulations The US Constitution + amendments delineates the powers of the branches. Is the situation you describe possibly a window in time when executive branch constitutional overreach has not been yet challenged? [ edit : great explanations below -> sincere thanks ]

mattmaroon 3y ago
It’s not overreach, it’s delegation by Congress to the executive parent is discussing. Congress often gives the executive the right to regulate things instead of regulating it themselves, and it’s a controversial topic.
aidenn0 3y ago
Congress created the FTC, congress could eliminate or curtail the FTC's power. Some have argued that it's unconstitutional for congress to give away its power (even conditionally) in this way, but AFAIK that's a rather fringe legal theory. Certainly the FTC has existed for over 100 years at this point, so there's been plenty of time to challenge it.
- no_wizard 3y ago
  The same fringe legal theory that is likely to win in the Chevron Deference case[0] before the Supreme court, which will gut agencies (including the FTCs) ability to regulate things in this manner? [0]: https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/ https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
  - aidenn0 3y ago
    Not even remotely the same legal theory; the theory there is that the courts should be able to review regulations the agencies make for e.g. if there were less burdensome ways to accomplish the same goal even when the regulations themselves are "reasonable"
- cryptonector 3y ago
  The major questions doctrine announced in W. Virginia vs. EPA, and the upcoming, likely reversal of Chevron together will greatly limit the Congress' ability delegate power broadly to the Executive. You might call that a "fringe legal theory", but it seems poised to be the legal theory of the land.
cryptonector 3y ago
Live by regulation, die by regulation. GP's point is that since this rule is made by this Administration, the next Administration could undo it. GP is right. As long as one Administration has the power delegated to it by Congress, and so does the next one, then the next one can change and even reverse the previous one(s)' regulations. The court recently found (in W. Virginia vs. EPA) that Congress cannot delegate power in "major questions". This rule might not be a "major question", but given the vagueness of the statutory foundation of the FTC, it's possible that all of the FTC's work is on thin ice. The Court would likely not rule the whole FTC and its past regulations unconstitutional, but it might start looking askance at regulations that seem remotely like major questions. Is this rule a "major question"? I don't know, but I'm inclined to think "no".

mattmaroon 3y ago

While your points are good, on the other hand, Congress at this point is totally broken, it’s hard to imagine it becoming unbroken (since it would require an amendment which is usually passed by Congress and they have no desire to make things harder for themselves), and it’s beholden to special interests in a way that the executive branch often isn’t. So at least this way, things can get done.

cryptonector 3y ago
> Congress at this point is totally broken If Congress can delegate authority at will and with tremendous vagueness vagueness (as in the case of the FTC) then that allows Congress to be more disfunctional. If the Court reverses Chevron and later guts the FTC then Congress will have to get its act together -- they might not, but if they do then the Court will have helped us enormously.
- mattmaroon 3y ago
  I don’t agree with that mental model because it assumes Congress has to make sure the job gets done. They don’t. They can be as dysfunctional as they want. Polls show that the vast majority of people are unhappy with Congress, and yet they get re-elected at very high rates. There’s no real reason to suspect that their job performance had anything to do with getting elected anymore. They could very easily just fail to regulate everything that actually needs it. The alternative to the FTC isn’t Congress doing the regulation, it’s no regulation at all. Perhaps I’m overly pessimistic but I think we’ve gotten to a point where gerrymandering has just broken Congress irreparably by divorcing their job security from their effectiveness. I hope I’m wrong and you’re right.
  - cryptonector 3y ago
    Perhaps we have reached the scalability limit of the Founders' scheme.

brigadier132 3y ago

> completely abandoned its duty to pass laws That's the duty of the legislature? To make more rules?

deleted 3y ago
[deleted]
aidenn0 3y ago
Pass, repeal, and revise laws, yes. That's literally what the word "legislator" means.
- brigadier132 3y ago
  Legislator is a person that can write laws, it does not mean it's their duty to write laws. In the United States their duty is to uphold the constitution and represent their constituents. Not to create more rules.
  - aidenn0 3y ago
    Unless their constituents think the current laws of the land are 100% perfect, then representing their constituents would involve passing laws.
    - brigadier132 3y ago
      And they would need to convince enough other representatives and the constituents those representatives represent, which they can't because the country is extremely divided.
  - saurik 3y ago
    I don't think the point is they have to spend their time writing more rules if they don't feel they have to, but they are the ones who would do it: with respect to the rules and policies and procedures of our government, we have a legislative branch that is supposed to draft and maintain them, an executive branch that is supposed to implement and enforce them, and a judicial branch that is supposed to interpret and adjudicate them... only, the boundary between the first and second (and arguably also the second and third) of those branches is a bit blurred as congress keeps writing vague laws that say "there shall be an agency which will prevent X" where X is something extremely high-level like "unfair business practices" and then the executive branch is forced to figure out what that means, and in the process is effectively doing the wrong jobs :/.

snapetom 3y ago

This has been a problem for decades. Congress' focus is more on self-preservation than good policy. For example, granting abortion rights through case law was always incredibly tenuous and now that's been proven. I predict this will be kicked around the executive branch and bounced in courts. Even if it stands, like you point out, future administrations can just revoke it. All the while, Congress should be taking action and codifying this.