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Even if this weren't thrown out, the rule would have been up for re-certification every 4 years with every single presidential election, including this one. Adm

Even if this weren't thrown out, the rule would have been up for re-certification every 4 years with every single presidential election, including this one. Administrative rulemaking is an extremely fragile way to run a country with or without judicial review simply because a single nation-wide election can completely alter the administrative landscape overnight. Making rules like this is Congress's job not just because some judge says so—it's Congress's job because only Congress can make laws that aren't perpetually at risk of being stripped out when a new party takes power. I want non-competes to be banned permanently, not just banned until the political winds shift by 5%.

advisedwang 2y ago
Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing. Even if you think the back and forth isn't worthwhile, it's actually not politically avoidable because the other party will still play this game and you end up with a back and forth around an equilibrium further from what you might want.
- lolinder 2y ago
  It's not a popular opinion, but I'm pretty convinced that a few (5<=N<=10) years of administrative rulemaking being handicapped would fix Congress up pretty thoroughly. Both major parties benefit from the status quo of Congress being incapable and everything being ephemeral—each can promise their stakeholders that if you elect them this cycle they'll make sure that things go their way for this cycle. The ephemeral nature of the "win" is valuable because if they actually made a permanent fix the urgency to elect party Y would be gone. It's the subscription model applied to governance. My theory is that if you remove the administrative law game, things will quickly get broken enough that stakeholders will demand better, so both parties will get their act together and actually try to pass legislation again. It's entirely possible that I'm wrong (and cue the inevitable "it's not both sides" comments), but unless something unexpected happens to the court system it looks like we'll get to see in a few years.
  - advisedwang 2y ago
    Maybe. Maybe it would lead to other games being played though. For example, now that the right has the supreme court, it has claimed a lot of extra power over regulatory agencies, elections and even congress. This effectively makes a right wing body the final arbiter; and end run over attempts to get the system working honestly. I believe reform needs to be a lot more hands on to get things back on track.
    - infogulch 2y ago
      Regulatory agencies have power which they were never granted, and the supreme court correctly found that if the executive branch is not granted power to do something (e.g. pass de-facto laws) they they cannot do that. This is a constitutional position, not a partisan position. If we want laws then we get congress to pass laws. This is how our system works. Congress' dysfunction is not an excuse to end-run around our system, it's a reason to fix congress.
      - bookaway 2y ago
        Well, if one party or another thinks the way the current pieces are lying on the board are advantageous to them, I would think it's a reason for them not to fix Congress.
        infogulch 2y ago
        Both parties are disincentivized to actually fix the problem because when unelected bureaucrats in the executive branch make all the rules then nobody is actually held accountable. Then senators and congressmen from both isles get to chain themselves to the fence and viscously bark at the other side with partisan vitrol to drum up support while getting nothing done.
      - consteval 2y ago
        > This is a constitutional position, not a partisan position Every* previous court has disagreed. This is just your opinion. Chevron has been de-facto the way things are done since the early 1900s. You can disagree with Chevron, but you'd have to be both blind and deaf to think that's not a politically motivated position. At which point, I'm wondering how Hellen Keller got on hacker news. As a side-note: the constitution is, in fact, up to interpretation. The textualist's interpretation is just one. It is not more correct and, actually, is typically obviously obtuse. I mean, it's a position based on the action of playing dumb.
- koolba 2y ago
  > Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing. Which means that the country, through their elected legislature, has not agreed on a policy. Not coming to a new decision doesn’t mean the executive branch gets carte blanche to make up the rules. Not coming to an agreement means the country is not at enough of an agreement. If it’s truly popular it should pass Congress. If it’s not, it won’t. And if it’s popular and it doesn’t pass, then there’s always elections to change Congress and try again. The slow pace is a feature, not a bug.
  - BriggyDwiggs42 2y ago
    Frankly, it doesn’t mean that at all. There are myriad issues where a clear majority of the country believes something should be legal or illegal but congress either takes no action or goes against that will. The issue is that these people are far more accountable to those with the money to run their campaigns than to the common peasant the campaign ad targets. Consequently, the will that tends to get realized in congress is slanted heavily towards the interests of money, and of course it is. Lack of noncompete legislation isn’t an example of slow pace, it’s an example of companies that have money slanting politics in their favor to maintain a bit of extra leverage over their workers.
    - parineum 2y ago
      Those issues are largely red herrings. Get into actual policy details and you'll see the consensus disappear. Marijuana legalization is a great example. It's been consensus that it shouldn't have been as illegal as it was for decades yet it's only been consensus to treat it mostly like alcohol in a handful of states. The consensus of "something should be done" can predate the consensus of "this should be done" by years or decades, especially nationally.
      - BriggyDwiggs42 2y ago
        You know what, this is actually a pretty good point. No politician wants to go out on a limb proposing a specific solution in case some of their demo doesn’t like that particular one.
jjk166 2y ago
But if congress made the rules it would be in jeopardy every 2 years with every single presidential and midterm election. The whole reason we have elections is so that people can put into place new leaders who will change rules. There's no such thing as a permanent law, and anyone with two braincells to rub together wouldn't want there to be.
- lolinder 2y ago
  Most congressional seats are not up for election in any given 2-year cycle, so a single 6-month window of support for your side doesn't do the trick—in most cases you have to do that three times over six years in many states, which would tend to mean that the shift in sentiment wasn't ephemeral but was in fact a sustained national shift against the law in question. There are exceptions (2010), but even those are clearly cases where something abnormal was happening at the grassroots level, not just the usual 5% pendulum we see with the presidency. And then, once you've successfully changed the makeup of Congress to meaningfully slant in your direction, you still have to also control the presidency or at least work with the president in order to get a bill through. So, yes, Congress can repeal bills that it's put in place. But it takes a lot of work and generally would represent a pretty fundamental shift in voter opinions, which is exactly when laws should change.
  - jjk166 2y ago
    468 of the 538 seats in congress, including 100% of house seats, are up for election every 2 years. On top of this, you don't need to change every seat in congress, you generally only need a tiny handful to flip to switch control - for example at this moment the Senate is 51 to 49 and the house is 220 to 212 (with 3 vacancies). To flip both houses would require only 7 seats to flip, or 1.3% of congressional seats. The big difference between congressional and executive elections is that congressional changes explicitly do not represent national shifts in voter opinions as they are regional elections. Only a national election can demonstrate a true shift in voter opinions, and when such a shift occurs is exactly when laws should change.
consteval 2y ago
One party is fundamentally against making solutions, regardless of what the solution or problem actually is. They don't want it. Their solution to every problem is "do nothing". Something something free market
- lolinder 2y ago
  This is a meme that's passed around on the left-leaning internet but anyone who has spent any significant amount of time with Republican voters knows it's nonsense. There are a whole ton of laws that Republicans want implemented. I'm not sure if they don't count as laws because left-leaning meme-makers strongly disagree with them or because they truly don't realize that Republicans have opinions besides "big government bad". To wit: * Immigration law * Laws regarding who you can and can't marry * Laws preventing access to a number of health procedures * Laws regarding what types of substances you can put into yourself * Laws forcing big platforms to not censor speech * Laws enshrining churches as protected institutions And on and on and on and on. If you listen to these memes you'd get the impression that Republican voters are overwhelmingly libertarian, which couldn't be further from the truth. You may well disagree with many of the laws that they want (I do), but it's a bit rich to claim that they don't want any laws when the Democratic Party is basically running on a platform of "stop Project 2025".
  - consteval 2y ago
    All those laws you listed are about maintained the status quo or the status quo of a few decades ago, i.e. conservatism. This isn't creating solutions to problems, this is bringing back or upholding problems from some time ago so we can look at them and do nothing. This is the fundamental difference between conservative ideology and progressive ideology. Progressives seek solutions to current-day perceived problems, and sometimes the solutions are bad. Conservatives seek to maintain problems, even across generations, sometimes bringing problems of long ago back into reality. This is why, for example, conservatives brought Jim Crow during the reconstruction era. Is this not regulation? Yes, but it's also a return/continuation of the status quo. It's the opposite of a solution, it's a the problem extended and then actually PROTECTING the problem so it can't be solved. It's an anti-solution. That's one, really old, example. But take your pick of any during American history and you will see this is always the case. Because that's what defines conservatism as conservatism.

advisedwang 2y ago

Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing. Even if you think the back and forth isn't worthwhile, it's actually not politically avoidable because the other party will still play this game and you end up with a back and forth around an equilibrium further from what you might want.

lolinder 2y ago
It's not a popular opinion, but I'm pretty convinced that a few (5<=N<=10) years of administrative rulemaking being handicapped would fix Congress up pretty thoroughly. Both major parties benefit from the status quo of Congress being incapable and everything being ephemeral—each can promise their stakeholders that if you elect them this cycle they'll make sure that things go their way for this cycle. The ephemeral nature of the "win" is valuable because if they actually made a permanent fix the urgency to elect party Y would be gone. It's the subscription model applied to governance. My theory is that if you remove the administrative law game, things will quickly get broken enough that stakeholders will demand better, so both parties will get their act together and actually try to pass legislation again. It's entirely possible that I'm wrong (and cue the inevitable "it's not both sides" comments), but unless something unexpected happens to the court system it looks like we'll get to see in a few years.
- advisedwang 2y ago
  Maybe. Maybe it would lead to other games being played though. For example, now that the right has the supreme court, it has claimed a lot of extra power over regulatory agencies, elections and even congress. This effectively makes a right wing body the final arbiter; and end run over attempts to get the system working honestly. I believe reform needs to be a lot more hands on to get things back on track.
  - infogulch 2y ago
    Regulatory agencies have power which they were never granted, and the supreme court correctly found that if the executive branch is not granted power to do something (e.g. pass de-facto laws) they they cannot do that. This is a constitutional position, not a partisan position. If we want laws then we get congress to pass laws. This is how our system works. Congress' dysfunction is not an excuse to end-run around our system, it's a reason to fix congress.
    - bookaway 2y ago
      Well, if one party or another thinks the way the current pieces are lying on the board are advantageous to them, I would think it's a reason for them not to fix Congress.
      - infogulch 2y ago
        Both parties are disincentivized to actually fix the problem because when unelected bureaucrats in the executive branch make all the rules then nobody is actually held accountable. Then senators and congressmen from both isles get to chain themselves to the fence and viscously bark at the other side with partisan vitrol to drum up support while getting nothing done.
    - consteval 2y ago
      > This is a constitutional position, not a partisan position Every* previous court has disagreed. This is just your opinion. Chevron has been de-facto the way things are done since the early 1900s. You can disagree with Chevron, but you'd have to be both blind and deaf to think that's not a politically motivated position. At which point, I'm wondering how Hellen Keller got on hacker news. As a side-note: the constitution is, in fact, up to interpretation. The textualist's interpretation is just one. It is not more correct and, actually, is typically obviously obtuse. I mean, it's a position based on the action of playing dumb.
koolba 2y ago
> Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing. Which means that the country, through their elected legislature, has not agreed on a policy. Not coming to a new decision doesn’t mean the executive branch gets carte blanche to make up the rules. Not coming to an agreement means the country is not at enough of an agreement. If it’s truly popular it should pass Congress. If it’s not, it won’t. And if it’s popular and it doesn’t pass, then there’s always elections to change Congress and try again. The slow pace is a feature, not a bug.
- BriggyDwiggs42 2y ago
  Frankly, it doesn’t mean that at all. There are myriad issues where a clear majority of the country believes something should be legal or illegal but congress either takes no action or goes against that will. The issue is that these people are far more accountable to those with the money to run their campaigns than to the common peasant the campaign ad targets. Consequently, the will that tends to get realized in congress is slanted heavily towards the interests of money, and of course it is. Lack of noncompete legislation isn’t an example of slow pace, it’s an example of companies that have money slanting politics in their favor to maintain a bit of extra leverage over their workers.
  - parineum 2y ago
    Those issues are largely red herrings. Get into actual policy details and you'll see the consensus disappear. Marijuana legalization is a great example. It's been consensus that it shouldn't have been as illegal as it was for decades yet it's only been consensus to treat it mostly like alcohol in a handful of states. The consensus of "something should be done" can predate the consensus of "this should be done" by years or decades, especially nationally.
    - BriggyDwiggs42 2y ago
      You know what, this is actually a pretty good point. No politician wants to go out on a limb proposing a specific solution in case some of their demo doesn’t like that particular one.

jjk166 2y ago

But if congress made the rules it would be in jeopardy every 2 years with every single presidential and midterm election. The whole reason we have elections is so that people can put into place new leaders who will change rules. There's no such thing as a permanent law, and anyone with two braincells to rub together wouldn't want there to be.

lolinder 2y ago
Most congressional seats are not up for election in any given 2-year cycle, so a single 6-month window of support for your side doesn't do the trick—in most cases you have to do that three times over six years in many states, which would tend to mean that the shift in sentiment wasn't ephemeral but was in fact a sustained national shift against the law in question. There are exceptions (2010), but even those are clearly cases where something abnormal was happening at the grassroots level, not just the usual 5% pendulum we see with the presidency. And then, once you've successfully changed the makeup of Congress to meaningfully slant in your direction, you still have to also control the presidency or at least work with the president in order to get a bill through. So, yes, Congress can repeal bills that it's put in place. But it takes a lot of work and generally would represent a pretty fundamental shift in voter opinions, which is exactly when laws should change.
- jjk166 2y ago
  468 of the 538 seats in congress, including 100% of house seats, are up for election every 2 years. On top of this, you don't need to change every seat in congress, you generally only need a tiny handful to flip to switch control - for example at this moment the Senate is 51 to 49 and the house is 220 to 212 (with 3 vacancies). To flip both houses would require only 7 seats to flip, or 1.3% of congressional seats. The big difference between congressional and executive elections is that congressional changes explicitly do not represent national shifts in voter opinions as they are regional elections. Only a national election can demonstrate a true shift in voter opinions, and when such a shift occurs is exactly when laws should change.

consteval 2y ago

One party is fundamentally against making solutions, regardless of what the solution or problem actually is. They don't want it. Their solution to every problem is "do nothing". Something something free market

lolinder 2y ago
This is a meme that's passed around on the left-leaning internet but anyone who has spent any significant amount of time with Republican voters knows it's nonsense. There are a whole ton of laws that Republicans want implemented. I'm not sure if they don't count as laws because left-leaning meme-makers strongly disagree with them or because they truly don't realize that Republicans have opinions besides "big government bad". To wit: * Immigration law * Laws regarding who you can and can't marry * Laws preventing access to a number of health procedures * Laws regarding what types of substances you can put into yourself * Laws forcing big platforms to not censor speech * Laws enshrining churches as protected institutions And on and on and on and on. If you listen to these memes you'd get the impression that Republican voters are overwhelmingly libertarian, which couldn't be further from the truth. You may well disagree with many of the laws that they want (I do), but it's a bit rich to claim that they don't want any laws when the Democratic Party is basically running on a platform of "stop Project 2025".
- consteval 2y ago
  All those laws you listed are about maintained the status quo or the status quo of a few decades ago, i.e. conservatism. This isn't creating solutions to problems, this is bringing back or upholding problems from some time ago so we can look at them and do nothing. This is the fundamental difference between conservative ideology and progressive ideology. Progressives seek solutions to current-day perceived problems, and sometimes the solutions are bad. Conservatives seek to maintain problems, even across generations, sometimes bringing problems of long ago back into reality. This is why, for example, conservatives brought Jim Crow during the reconstruction era. Is this not regulation? Yes, but it's also a return/continuation of the status quo. It's the opposite of a solution, it's a the problem extended and then actually PROTECTING the problem so it can't be solved. It's an anti-solution. That's one, really old, example. But take your pick of any during American history and you will see this is always the case. Because that's what defines conservatism as conservatism.