4 ms·

It's worth noting that these agencies and their powers did not spring up out of thin air. Various elected Congress sessions wrote the laws that created and empo

It's worth noting that these agencies and their powers did not spring up out of thin air. Various elected Congress sessions wrote the laws that created and empowered these agencies to create rules. This is a reasonable implementation of a "democratic republic" as Congress still has oversight.

chrisfinazzo 3y ago
Yet the Chevron decision empowers agencies to make rules independent of Congress in cases where the rules don't already exist or are unclear. https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura.... Unsurprisingly, Kavanaugh and the rest of the conservatives would prefer this approach be relegated to history. Of course, the areas of particular interest that he cites as examples (securities e.g, finance, communications, and environmental laws) just happen to be those where the two parties could not possibly be further apart in their approaches. https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/ https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
- fallingknife 3y ago
  It seems to me that the Chevron doctrine has essentially created a fourth branch of government with minimal democratic oversight. It feels like an end run around the constitution. In many cases the agencies exercise legislative, executive, and judicial powers all at the same time.
  - chrisfinazzo 2y ago
    Congress, in its current state is a sclerotic body barely capable of doing routine committee work that doesn't even rise to the level of passing laws. They had their chance...and failed spectacularly.
- moduspol 3y ago
  Also gun laws. Any firearm enthusiast can tell you how inconsistent and incoherent various ATF rulings and determinations have been.
  - chrisfinazzo 2y ago
    You lost me at "firearm enthusiast." Try again when US gun laws look more like Japan's -- including an assault weapons ban. https://www.cnn.com/2022/07/08/asia/japan-gun-laws-abe-shooting-intl-hnk/index.html https://www.cnn.com/2022/07/08/asia/japan-gun-laws-abe-shoot...
    - moduspol 2y ago
      I don't see the relevance to the topic being discussed. The fact remains that the ATF enjoys the ability to unilaterally revise firearm policy well beyond what many find reasonable without a change in law made by Congress.
      - chrisfinazzo 2y ago
        This scenario is precisely why the outcome of Chevron is useful -- and, I'd argue, vital in addressing areas where legislation is needed, even if we still disagree about what shape it might take. Congress' process takes too long to adapt to conditions on the ground. The ATF has a focused mandate to study and set policy in this area without waiting for Congress to consider the issue. It might not be perfect and is still subject to political influencing as the makeup of the committee changes based on appointments, but at least something gets done. Regarding the FCC, there is some prioritization based on the type of traffic served, but it's fairly commonsense in its approach and the committee recognized that a complete lack of regulation wasn't in the public's best interest. The idea that everything is left to Congress -- or ignored, as the case may be -- creates a situation where good ideas don't develop into meaningful legislation or the bad ones get implemented over the will of the majority. Again, not only does this not happen in parliamentary systems, it's not possible because the people debating the issue are all on the same side. They all agree on the desired outcome, it's rather a question of how far they want to go.
wtallis 3y ago
The problem with merely having regulations rather than laws is not a concern that they may not have proper legal authority, but that they are less durable and more easily overturned than laws passed by Congress and signed by the President.
- redserk 3y ago
  I agree, and I'd rather Congress weigh in now that we've had this specific issue flip-flop twice. I do not like the implication that agency rulemaking is anti-democratic though. We have utilized this structure for well over 120 years, or practically half of the country's history.
  - wtallis 3y ago
    You may not like it being pointed out, but having rules made by appointed regulators rather than elected legislators is obviously anti-democratic. Yes, delegating powers like this is a practical necessity, but having made that reasonable tradeoff does not erase the reality that it's a less than perfectly democratic process. So is the structure of Congress itself.
    - redserk 3y ago
      First, the US is not a pure democracy. We elect representatives on our behalf to handle voting on matters. So dismissing something as "anti-democratic" is not applicable here. Our elected officials set up a system where a series of agencies under the Executive Branch may create rules, but the elected officials have oversight authority. If you disagree, you may petition your state government for a constitutional amendment that prohibits this practice and advocate for additional states to join in.
      - wtallis 3y ago
        > So dismissing something as "anti-democratic" is not applicable here. [...] > If you disagree, you may petition your state government for a constitutional amendment I think you're misinterpreting what's being said here in order to over-react. I don't think anyone in this thread is saying that executive orders and delegating powers to appointed regulators should be expunged from our system of government. But they should be acknowledged as a necessary evil, and their use minimized when possible, and not allowed to completely replace the legislative process. Whereas you seem to be defending taking those practices to the extreme simply because of historical precedent.
willmadden 3y ago
Not if the agencies have leverage over Congress.
backtoyoujim 3y ago
Agencies are not beholden to Congress; they are beholden to the executive branch that creates them. That is why Nixon created the EPA so that there would not be a Department of the Environment that was out of the hands of executive power.
- pseudalopex 3y ago
  Congress created the FCC. Congress passed many laws governing agencies. Departments are not out of the hands of executive power.
- rascul 3y ago
  > Nixon created the EPA Only because Congress allowed it. https://www.epa.gov/history/origins-epa https://www.epa.gov/history/origins-epa
- rsanek 3y ago
  https://en.m.wikipedia.org/wiki/Congressional_Review_Act https://en.m.wikipedia.org/wiki/Congressional_Review_Act
- adrr 2y ago
  Congress creates and funds agencies. Agencies write the regulations. This is all specified in the law that was passed. FCC commission makeup is defined by law and their authority is defined by law.
- sabarn01 2y ago
  Congress has the legislative power all agencies derive their power from some act of congress.

chrisfinazzo 3y ago

Yet the Chevron decision empowers agencies to make rules independent of Congress in cases where the rules don't already exist or are unclear. https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura.... Unsurprisingly, Kavanaugh and the rest of the conservatives would prefer this approach be relegated to history. Of course, the areas of particular interest that he cites as examples (securities e.g, finance, communications, and environmental laws) just happen to be those where the two parties could not possibly be further apart in their approaches. https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/ https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

fallingknife 3y ago
It seems to me that the Chevron doctrine has essentially created a fourth branch of government with minimal democratic oversight. It feels like an end run around the constitution. In many cases the agencies exercise legislative, executive, and judicial powers all at the same time.
- chrisfinazzo 2y ago
  Congress, in its current state is a sclerotic body barely capable of doing routine committee work that doesn't even rise to the level of passing laws. They had their chance...and failed spectacularly.
moduspol 3y ago
Also gun laws. Any firearm enthusiast can tell you how inconsistent and incoherent various ATF rulings and determinations have been.
- chrisfinazzo 2y ago
  You lost me at "firearm enthusiast." Try again when US gun laws look more like Japan's -- including an assault weapons ban. https://www.cnn.com/2022/07/08/asia/japan-gun-laws-abe-shooting-intl-hnk/index.html https://www.cnn.com/2022/07/08/asia/japan-gun-laws-abe-shoot...
  - moduspol 2y ago
    I don't see the relevance to the topic being discussed. The fact remains that the ATF enjoys the ability to unilaterally revise firearm policy well beyond what many find reasonable without a change in law made by Congress.
    - chrisfinazzo 2y ago
      This scenario is precisely why the outcome of Chevron is useful -- and, I'd argue, vital in addressing areas where legislation is needed, even if we still disagree about what shape it might take. Congress' process takes too long to adapt to conditions on the ground. The ATF has a focused mandate to study and set policy in this area without waiting for Congress to consider the issue. It might not be perfect and is still subject to political influencing as the makeup of the committee changes based on appointments, but at least something gets done. Regarding the FCC, there is some prioritization based on the type of traffic served, but it's fairly commonsense in its approach and the committee recognized that a complete lack of regulation wasn't in the public's best interest. The idea that everything is left to Congress -- or ignored, as the case may be -- creates a situation where good ideas don't develop into meaningful legislation or the bad ones get implemented over the will of the majority. Again, not only does this not happen in parliamentary systems, it's not possible because the people debating the issue are all on the same side. They all agree on the desired outcome, it's rather a question of how far they want to go.

wtallis 3y ago

The problem with merely having regulations rather than laws is not a concern that they may not have proper legal authority, but that they are less durable and more easily overturned than laws passed by Congress and signed by the President.

redserk 3y ago
I agree, and I'd rather Congress weigh in now that we've had this specific issue flip-flop twice. I do not like the implication that agency rulemaking is anti-democratic though. We have utilized this structure for well over 120 years, or practically half of the country's history.
- wtallis 3y ago
  You may not like it being pointed out, but having rules made by appointed regulators rather than elected legislators is obviously anti-democratic. Yes, delegating powers like this is a practical necessity, but having made that reasonable tradeoff does not erase the reality that it's a less than perfectly democratic process. So is the structure of Congress itself.
  - redserk 3y ago
    First, the US is not a pure democracy. We elect representatives on our behalf to handle voting on matters. So dismissing something as "anti-democratic" is not applicable here. Our elected officials set up a system where a series of agencies under the Executive Branch may create rules, but the elected officials have oversight authority. If you disagree, you may petition your state government for a constitutional amendment that prohibits this practice and advocate for additional states to join in.
    - wtallis 3y ago
      > So dismissing something as "anti-democratic" is not applicable here. [...] > If you disagree, you may petition your state government for a constitutional amendment I think you're misinterpreting what's being said here in order to over-react. I don't think anyone in this thread is saying that executive orders and delegating powers to appointed regulators should be expunged from our system of government. But they should be acknowledged as a necessary evil, and their use minimized when possible, and not allowed to completely replace the legislative process. Whereas you seem to be defending taking those practices to the extreme simply because of historical precedent.

willmadden 3y ago

Not if the agencies have leverage over Congress.

backtoyoujim 3y ago

Agencies are not beholden to Congress; they are beholden to the executive branch that creates them. That is why Nixon created the EPA so that there would not be a Department of the Environment that was out of the hands of executive power.

pseudalopex 3y ago
Congress created the FCC. Congress passed many laws governing agencies. Departments are not out of the hands of executive power.
rascul 3y ago
> Nixon created the EPA Only because Congress allowed it. https://www.epa.gov/history/origins-epa https://www.epa.gov/history/origins-epa
rsanek 3y ago
https://en.m.wikipedia.org/wiki/Congressional_Review_Act https://en.m.wikipedia.org/wiki/Congressional_Review_Act
adrr 2y ago
Congress creates and funds agencies. Agencies write the regulations. This is all specified in the law that was passed. FCC commission makeup is defined by law and their authority is defined by law.
sabarn01 2y ago
Congress has the legislative power all agencies derive their power from some act of congress.