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What do you mean? The judicial branch is much less democratic than the executive branch. If you refer to the 'regulation is by unelected bureaucrats' argument
by mmooss 2y ago
What do you mean?
The judicial branch is much less democratic than the executive branch.
If you refer to the 'regulation is by unelected bureaucrats' argument, it's certainly widely stated but it's BS: With only ~540 elected people in Washington, almost every decision and act by people who weren't elected. Government would immediately cease to function if those 540 had to do everything, and democracy would be impossible. Democracy is people delegated specific powers by elected officials, and that includes regulators.
The democratic credentials of courts and executive branch regulators are an interesting comparison: Both have their members appointed by the executive and confirmed by the legislature. Elected officials insulate both from the elected officials' own interference.
The main difference is how thick that insulation is: Executive branch regulators are intended to change authority with each president and to generally follow the president's preferences to some degree, within the law and in service to the American people (that is, they serve the people and not the president). The regulators are insulated by laws which theoretically could change any day, but generally don't. Judicial branch appointees, the judges, are for life, are expected to act completely independently of the president who appointed them, and they are insulated by the Constitution, which is much harder to change.
- tptacek 2y agoThe outcome of this case pushes power away from the executive, and towards the legislature.
- wtallis 2y agoIt doesn't change the legislature's power; they were and still are free to write detailed regulations into law. It just shifted the power in cases of less-specific regulations away from the executive and to the courts. The courts are every bit as capable as the executive of making tortured interpretations of law, and to some extent are required to do so by stare decisis.
- tptacek 2y agoAllowing the executive branch to make new laws does, in fact, take power from the legislative branch!
- mmooss 2y agoIs the legislature more democratic than the executive? Also, what does that mean in reality? The 538 elected legislators can't regulate everything (or anything), of course. Whatever they do, it will require delegating power, as I said, to functionaries. And in any case, implementing laws and policy is an executive branch function - for the legislature to do it (beyond writing law) would be a violation of separation of powers.
- tptacek 2y agoYes, it is.
- mmooss 2y agoI am so much wiser after reading your comment!
- tptacek 2y agoNobody elected the FCC commissioners and staff making these rules. Virtually every legislator is elected.
- mmooss 2y agoThat was addressed earlier in the conversation, multiple times.
- tptacek 2y agoI don't know if it was "addressed", but it couldn't have been "rebutted", because this is basically axiomatic. Loper doesn't overturn specific delegations of power to regulators; doing so would basically neuter the entire executive branch. What it says is that when there's ambiguity about a statute --- such as when a telecommunications bill that barely mentions the Internet and appears to view it in approximately the same light as TMBG's "Dial-a-Song" is used as the basis for sweeping Internet regulation --- the courts are no longer required to take the regulator's word for it. There's nothing wrong with delegations of power. They just need to be specific; they should represent a legibly expressed intent of the democratically elected legislative branch, which is the branch that the framers created specifically to craft legislation.