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Is the legislature more democratic than the executive? Also, what does that mean in reality? The 538 elected legislators can't regulate everything (or anything

by mmooss 2y ago

Is 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 ago
Yes, it is.
- mmooss 2y ago
  I am so much wiser after reading your comment!
  - tptacek 2y ago
    Nobody elected the FCC commissioners and staff making these rules. Virtually every legislator is elected.
    - mmooss 2y ago
      That was addressed earlier in the conversation, multiple times.
      - tptacek 2y ago
        I 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.
        mmooss 2y ago
        > this is basically axiomatic And what I said is 'self-evident' to me! Why even bother telling it to anyone else?
  - idlewords 2y ago
    The legislature, and in particular the House, being more democratic than the executive is a bedrock principle of American democracy. Read the Federalist Papers if you want a full theoretical grounding and justification of why from the framers' perspective.
    - mmooss 2y ago
      Thank you. Might you give us a summary, to tide us over until we read the entire Federalist Papers? :)
      - idlewords 2y ago
        Under the OG Constitution, the House was the only branch of government directly elected by the people, and therefore most accountable to them. The terms were short (biannual) so that legislators would regularly be held accountable and easy to replace. A lot of the other machinery of government was put in place as a check on all this democracy, so that momentary passions and demagoguery couldn't bring down the government through a kind of mob rule. The founders further recognized the special democratic legitimacy of the House by giving it the sole power to impeach and to propose legislation that spent money. You can fairly characterize the framers' attitude as "the democracy is coming from inside the House", both for good and ill. The strong presidency we know is more a function of precedent (set by Washington, Adams and especially Jackson) than an explicit feature of the Constitution. Whether Congress or the executive would have primacy was an open question for the first few decades of the country's history.
        mmooss 2y ago
        That's a great point about the original House and Senate; I agree. I don't know that it makes the president less democratic than the House. I suppose presidents weren't directly elected either, via the electoral college, etc.
        tptacek 2y ago
        Everything else aside, and this is kind of unrelated to the points 'idlewords is making, but: in modern political theory the big problem with the executive doing this stuff vs. the executive branch is that the regulatory process in the executive branch is driven almost entirely by a combination of unelected appointees and unelected career staffers, usually guided by a bureaucratic public comment hearing process that provides just a faint approximation of representation. That's why you'd want Congress to do this and not the FCC, because Congress is directly representative, and decisions inside the FCC are overwhelmingly made by people nobody elected; the best you can say is that some of the highest-ranking of those people are traceable to appointments by an elected official. The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem, rather than have the FCC pretend it can step in for Congress when Congress isn't moving fast enough.

by mmooss 2y ago

tptacek 2y ago

Yes, it is.

mmooss 2y ago
I am so much wiser after reading your comment!
- tptacek 2y ago
  Nobody elected the FCC commissioners and staff making these rules. Virtually every legislator is elected.
  - mmooss 2y ago
    That was addressed earlier in the conversation, multiple times.
    - tptacek 2y ago
      I 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.
      - mmooss 2y ago
        > this is basically axiomatic And what I said is 'self-evident' to me! Why even bother telling it to anyone else?
- idlewords 2y ago
  The legislature, and in particular the House, being more democratic than the executive is a bedrock principle of American democracy. Read the Federalist Papers if you want a full theoretical grounding and justification of why from the framers' perspective.
  - mmooss 2y ago
    Thank you. Might you give us a summary, to tide us over until we read the entire Federalist Papers? :)
    - idlewords 2y ago
      Under the OG Constitution, the House was the only branch of government directly elected by the people, and therefore most accountable to them. The terms were short (biannual) so that legislators would regularly be held accountable and easy to replace. A lot of the other machinery of government was put in place as a check on all this democracy, so that momentary passions and demagoguery couldn't bring down the government through a kind of mob rule. The founders further recognized the special democratic legitimacy of the House by giving it the sole power to impeach and to propose legislation that spent money. You can fairly characterize the framers' attitude as "the democracy is coming from inside the House", both for good and ill. The strong presidency we know is more a function of precedent (set by Washington, Adams and especially Jackson) than an explicit feature of the Constitution. Whether Congress or the executive would have primacy was an open question for the first few decades of the country's history.
      - mmooss 2y ago
        That's a great point about the original House and Senate; I agree. I don't know that it makes the president less democratic than the House. I suppose presidents weren't directly elected either, via the electoral college, etc.
        tptacek 2y ago
        Everything else aside, and this is kind of unrelated to the points 'idlewords is making, but: in modern political theory the big problem with the executive doing this stuff vs. the executive branch is that the regulatory process in the executive branch is driven almost entirely by a combination of unelected appointees and unelected career staffers, usually guided by a bureaucratic public comment hearing process that provides just a faint approximation of representation. That's why you'd want Congress to do this and not the FCC, because Congress is directly representative, and decisions inside the FCC are overwhelmingly made by people nobody elected; the best you can say is that some of the highest-ranking of those people are traceable to appointments by an elected official. The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem, rather than have the FCC pretend it can step in for Congress when Congress isn't moving fast enough.