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> That sounds great in theory, however our Congress is known to be useless and in total gridlock. That's what they're supposed to do when there isn't public co

> That sounds great in theory, however our Congress is known to be useless and in total gridlock. That's what they're supposed to do when there isn't public consensus. You have to convince enough people that you're right to get the votes to pass the bill. > Our Supreme Court is known to vote along 6/3 partly lines, all precedent be damned. Here's the list of opinions from last year: https://en.wikipedia.org/wiki/2023_term_opinions_of_the_Supreme_Court_of_the_United_States https://en.wikipedia.org/wiki/2023_term_opinions_of_the_Supr... The table does not show predominantly 6/3 party line decisions. > These are predictable things, and given the known biases, this does not sound favorable towards agility which allows smart disruptive innovation, does it? The government isn't in the disruptive innovation business. The federal government in particular is supposed to do nothing in response to contentious issues, so the states can do multiple different things as their voters prescribe and then we can see what works the best. You shouldn't have any federal law on a new thing until it shakes out enough for people to reach consensus on what the federal law should be. And if that never happens then you let the different states have different laws. > Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes... Of course not, but it can certainly read a Supreme Court opinion and amend the law if there is consensus that the result was wrong. > And it would usually prefer that actor to be the responsible agency, not a court... We can dispatch with this with a simple question: Do you think agency determinations should be bound by stare decisis? Saying yes is obviously going to result in a rush to publish a rule resolving every ambiguity in the favor of whatever party is currently in power when the law passes, because the executive is a political branch, unlike the courts, and has only one elected official. This gives too much power to the executive. Saying no leads to the law flip flopping every time the Presidency changes parties, which is bad and the thing stare decisis is intended to prevent. Since both of the options lead to a problem, leaving the determination in the hands of the executive branch is the wrong choice. > It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. Which is exactly the role of the courts. They can listen to the administrative agency's arguments, as well as the other side's, but deciding how to interpret the law is what courts do.

consumer451 2y ago
You have made an entirely valid argument, and I really appreciate the reply. This is the law of the land. Now that the courts will have to do some of the work that was previously done by agencies, has the budget for the judicial branch been increased? If not, are we about to hit a major backlog which leads to less progress in the private sector? Are there any estimates on how many new judges must be sworn in, and new clerks need to be hired?
- AnthonyMouse 2y ago
  It's not yet obvious how many more cases there will be. There probably will be more initially as people want to challenge things they previously didn't expect to be able to win because the courts would have deferred to the agency. But you also eliminate all the cases where an agency would change their interpretation, get sued, change it back, get sued by someone else, etc. Once the courts have established a precedent for that rule, there should be less flip flopping and consequently less litigation.
Wytwwww 2y ago
> Of course not, but it can certainly read a Supreme Court opinion and amend the law if there is consensus that the result was wrong. Which is still problematic because the Supreme Court is almost as partisan (if not as) than the senate. So it will still be able to pick and chose which laws to challenge and when (i.e. they can just wait till the majority changes making any "clarifying" amendments unfeasible politically before making a ruling). Effectively at this point the Supreme Court just seems to pretty much be an extension of the legislative and executives branches just with a lot more randomness due to its small size and no term limits. > Saying no leads to the law flip flopping every time the Presidency changes parties, which is bad and the thing stare decisis is intended to prevent. Unless enough justices die/retire during that president's term then you end up with the same type of flip flopping.
- AnthonyMouse 2y ago
  > Which is still problematic because the Supreme Court is almost as partisan (if not as) than the senate. Not even close. Justices have certain leanings but in general they care about their legitimacy. Legislators regularly enact laws solely because they needed to pick up votes from a particular constituency, or somebody paid them to, even when the laws are transparently pandering, wasteful, absurd or needlessly complicated. > So it will still be able to pick and chose which laws to challenge and when (i.e. they can just wait till the majority changes making any "clarifying" amendments unfeasible politically before making a ruling). If that party is already in the majority it could have just passed the law it wants anyway? > Unless enough justices die/retire during that president's term then you end up with the same type of flip flopping. They're not supposed to do that. That's what stare decisis is about. It happens occasionally but it's not that often. Whereas when the party that controls the White House changes, they had been setting about to undo every thing the previous administration did as a matter of course. It's completely different.

consumer451 2y ago

You have made an entirely valid argument, and I really appreciate the reply. This is the law of the land. Now that the courts will have to do some of the work that was previously done by agencies, has the budget for the judicial branch been increased? If not, are we about to hit a major backlog which leads to less progress in the private sector? Are there any estimates on how many new judges must be sworn in, and new clerks need to be hired?

AnthonyMouse 2y ago
It's not yet obvious how many more cases there will be. There probably will be more initially as people want to challenge things they previously didn't expect to be able to win because the courts would have deferred to the agency. But you also eliminate all the cases where an agency would change their interpretation, get sued, change it back, get sued by someone else, etc. Once the courts have established a precedent for that rule, there should be less flip flopping and consequently less litigation.

Wytwwww 2y ago

> Of course not, but it can certainly read a Supreme Court opinion and amend the law if there is consensus that the result was wrong. Which is still problematic because the Supreme Court is almost as partisan (if not as) than the senate. So it will still be able to pick and chose which laws to challenge and when (i.e. they can just wait till the majority changes making any "clarifying" amendments unfeasible politically before making a ruling). Effectively at this point the Supreme Court just seems to pretty much be an extension of the legislative and executives branches just with a lot more randomness due to its small size and no term limits. > Saying no leads to the law flip flopping every time the Presidency changes parties, which is bad and the thing stare decisis is intended to prevent. Unless enough justices die/retire during that president's term then you end up with the same type of flip flopping.

AnthonyMouse 2y ago
> Which is still problematic because the Supreme Court is almost as partisan (if not as) than the senate. Not even close. Justices have certain leanings but in general they care about their legitimacy. Legislators regularly enact laws solely because they needed to pick up votes from a particular constituency, or somebody paid them to, even when the laws are transparently pandering, wasteful, absurd or needlessly complicated. > So it will still be able to pick and chose which laws to challenge and when (i.e. they can just wait till the majority changes making any "clarifying" amendments unfeasible politically before making a ruling). If that party is already in the majority it could have just passed the law it wants anyway? > Unless enough justices die/retire during that president's term then you end up with the same type of flip flopping. They're not supposed to do that. That's what stare decisis is about. It happens occasionally but it's not that often. Whereas when the party that controls the White House changes, they had been setting about to undo every thing the previous administration did as a matter of course. It's completely different.