8 ms·

FCC chair suggests agency isn't independent, word cut from mission statement

151 points by jmsflknr 10mo ago

zoklet-enjoyer 10mo ago
https://archive.ph/4NOiL https://archive.ph/4NOiL
delichon 10mo ago
If Humphrey's Executor goes down, "independent" becomes effectively unconstitutional under the current SCOTUS. It's awkward to have an unconstitutional goal hard wired into an agency's mission, and could be used against it in court. It's a bit of a presumption that Trump v Slaughter will turn out this way, but given the tone of the oral arguments, not a lot.
neom 10mo ago
The question: https://www.youtube.com/watch?v=mnOMyPbR7QY https://www.youtube.com/watch?v=mnOMyPbR7QY
- deleted 10mo ago
  [deleted]
CGMthrowaway 10mo ago
The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike the laws creating the FTC, NRLB, FERC or others, which do), they are legally removable at will by the president, placing the agency under executive control. The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that. Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body
- calvinmorrison 10mo ago
  The concept that congress could create a body that is NOT executed by the executive is crazier.
  - SilverElfin 10mo ago
    What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?
    - CGMthrowaway 10mo ago
      While Congress has broad authority to create and design federal agencies, the Constitution is widely considered to impose strict limits to ensure no branch "gives away" its core powers, vis a vis the Appointments Clause, due process clause and Article I vesting clause[1] [1]https://en.wikipedia.org/wiki/Nondelegation_doctrine https://en.wikipedia.org/wiki/Nondelegation_doctrine
  - estearum 10mo ago
    It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that. This is very obviously the design of our government. "[The President] shall take Care that the Laws be faithfully executed"
  - postflopclarity 10mo ago
    why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview
    - 10mo ago
nine_zeros 10mo ago
If anyone ever wondered how third world democracies become corrupt, you don't have to wonder any longer. Just observe the current USA.
trothamel 10mo ago
Some context: https://thehill.com/regulation/court-battles/5636278-trump-supreme-court-ftc-firing/ https://thehill.com/regulation/court-battles/5636278-trump-s... It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'. This seems to be in response to that.
president_zippy 10mo ago
The number of software engineers in this thread who think they are legal scholars is a sight to behold. It reminds me of all the bad legal advice on Stack Overflow, Quora, and Leddit.
- miltonlost 10mo ago
  The defense of clearly authoritarian powergrabs is gross to see, but expected from so many on this site
  - array_key_first 10mo ago
    No but it's okay because this was how it was pre-FDR. You see we're just going back the status quo, the good ole days.
  - president_zippy 10mo ago
    I didn't defend jack fuckin shit. All I did was point out that nobody arguing for or against this case on HN has anything to say worth reading about it.
- deleted 10mo ago
  [deleted]
- yieldcrv 10mo ago
  I hate the administrative state's current structure just enough that I don't care which administration or court dismantles it. From my perspective the Federal Government subjugated all the states by magically noticing that all commerce had become interstate commerce by the 1930s. Its a parallel country overlaying the union of states, instead of federalism - which has a definition divergent of what "Federal" means to us in reference to the national government. Harmonizing that all back under the President is a step, right before going after the Interstate Commerce clause itself. I don't care how disruptive that is, its Congress' job. If Congress can't form consensus the country is done, obviously. Otherwise, surface candidates that can actually bridge consensus, which is always an option. Everyone's last minute civil rights goals aren't going to happen, duh! So drop that just like all administrations from the past 250 years did consecutively, and pass relevant things that keep the lights on.
dmitrygr 10mo ago
The way I read the US constitution, every federal government agency is necessarily contained in one of the three branches, since the entire federal government is made of and only of those three branches. FCC is not in the legislative branch -- constitution is clear that that is only the congress, it is not judicial -- the constitution is clear that those are the courts. So it is in the executive, which makes sense since its job is to enforce law -- the job of the executive branch. The executive branch reports directly to and is directly answerable to the head of the executive -- the president. The congress cannot legislate a fourth branch even if they wanted to. They'd need a constitutional amendment for that. We have thus, by a simple application of reading and logic concluded that this is precisely as is expected given the US constitution.
0xbadcafebee 10mo ago
Cool! Assuming we don't go full-on 1930s-Germany, and Trump actually leaves office, then the next liberal president can have the FCC remove Fox News' broadcast license.
alsetmusic 10mo ago
Toadies doing the bidding of their master are the worst kind of boot-lickers because they mistakenly think they won't be crushed when they become inconvenient.
yieldcrv 10mo ago
Nice, interstate commerce next. Sorry Justice Sonia Sotomayer, the country is only in this quagmire because of the New Deal interpretation of the interstate commerce clause Most of the New Deal was struck down in the 1930s, that should be cause to question the constitutionality of everything that remains. From what I can tell, everything that remains just was hard to get standing to challenge within the courts. Now we have someone who can get standing very easily, going after it, right to the jugular.
- array_key_first 10mo ago
  The new deal is, like, one of three reason that the US isn't a complete shithole. The new deal is responsible for so, so much of the prosperity of the golden age of America that it cannot be understated.
  - yieldcrv 10mo ago
    And most of it was struck down immediately, with the dismantling solved by the most serious threat of packing the Supreme Court by the President and his party what stands out to me is that this President is written about favorable in our history books despite that plan being far more egregious and unprecedented at the time in any case, the court shifted its tune as a compromise not as a matter of actual opinion of the constitution and like I previously wrote, everything else was just hard to challenge at all, unless you are a President suddenly trying to fire some folks the US advancing from a backwater to an economic powerhouse is great! I wonder if we can do it another way without leaning on the Interstate Commerce clause to regulate all facets of American life
lovich 10mo ago
Whelp. Here’s more sanewashing of this admin. This headline is false and helping to ameliorate their crimes. He directly said it was not an independent agency, he didn’t “suggest” it. But we’re in the era where organizations like the BBC have people resign because the King doesn’t like their version of reality so I guess I better brush up on my NewSpeak

151 points by jmsflknr 10mo ago

https://archive.ph/4NOiL https://archive.ph/4NOiL

If Humphrey's Executor goes down, "independent" becomes effectively unconstitutional under the current SCOTUS. It's awkward to have an unconstitutional goal hard wired into an agency's mission, and could be used against it in court. It's a bit of a presumption that Trump v Slaughter will turn out this way, but given the tone of the oral arguments, not a lot.

neom 10mo ago

The question: https://www.youtube.com/watch?v=mnOMyPbR7QY https://www.youtube.com/watch?v=mnOMyPbR7QY

deleted 10mo ago
[deleted]

CGMthrowaway 10mo ago

The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike the laws creating the FTC, NRLB, FERC or others, which do), they are legally removable at will by the president, placing the agency under executive control. The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that. Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body

calvinmorrison 10mo ago
The concept that congress could create a body that is NOT executed by the executive is crazier.
- SilverElfin 10mo ago
  What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?
  - CGMthrowaway 10mo ago
    While Congress has broad authority to create and design federal agencies, the Constitution is widely considered to impose strict limits to ensure no branch "gives away" its core powers, vis a vis the Appointments Clause, due process clause and Article I vesting clause[1] [1]https://en.wikipedia.org/wiki/Nondelegation_doctrine https://en.wikipedia.org/wiki/Nondelegation_doctrine
- estearum 10mo ago
  It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that. This is very obviously the design of our government. "[The President] shall take Care that the Laws be faithfully executed"
- postflopclarity 10mo ago
  why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview
  - 10mo ago

nine_zeros 10mo ago

If anyone ever wondered how third world democracies become corrupt, you don't have to wonder any longer. Just observe the current USA.

trothamel 10mo ago

Some context: https://thehill.com/regulation/court-battles/5636278-trump-supreme-court-ftc-firing/ https://thehill.com/regulation/court-battles/5636278-trump-s... It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'. This seems to be in response to that.

president_zippy 10mo ago

The number of software engineers in this thread who think they are legal scholars is a sight to behold. It reminds me of all the bad legal advice on Stack Overflow, Quora, and Leddit.

miltonlost 10mo ago
The defense of clearly authoritarian powergrabs is gross to see, but expected from so many on this site
- array_key_first 10mo ago
  No but it's okay because this was how it was pre-FDR. You see we're just going back the status quo, the good ole days.
- president_zippy 10mo ago
  I didn't defend jack fuckin shit. All I did was point out that nobody arguing for or against this case on HN has anything to say worth reading about it.
deleted 10mo ago
[deleted]
yieldcrv 10mo ago
I hate the administrative state's current structure just enough that I don't care which administration or court dismantles it. From my perspective the Federal Government subjugated all the states by magically noticing that all commerce had become interstate commerce by the 1930s. Its a parallel country overlaying the union of states, instead of federalism - which has a definition divergent of what "Federal" means to us in reference to the national government. Harmonizing that all back under the President is a step, right before going after the Interstate Commerce clause itself. I don't care how disruptive that is, its Congress' job. If Congress can't form consensus the country is done, obviously. Otherwise, surface candidates that can actually bridge consensus, which is always an option. Everyone's last minute civil rights goals aren't going to happen, duh! So drop that just like all administrations from the past 250 years did consecutively, and pass relevant things that keep the lights on.

dmitrygr 10mo ago

The way I read the US constitution, every federal government agency is necessarily contained in one of the three branches, since the entire federal government is made of and only of those three branches. FCC is not in the legislative branch -- constitution is clear that that is only the congress, it is not judicial -- the constitution is clear that those are the courts. So it is in the executive, which makes sense since its job is to enforce law -- the job of the executive branch. The executive branch reports directly to and is directly answerable to the head of the executive -- the president. The congress cannot legislate a fourth branch even if they wanted to. They'd need a constitutional amendment for that. We have thus, by a simple application of reading and logic concluded that this is precisely as is expected given the US constitution.

0xbadcafebee 10mo ago

Cool! Assuming we don't go full-on 1930s-Germany, and Trump actually leaves office, then the next liberal president can have the FCC remove Fox News' broadcast license.

alsetmusic 10mo ago

Toadies doing the bidding of their master are the worst kind of boot-lickers because they mistakenly think they won't be crushed when they become inconvenient.

yieldcrv 10mo ago

Nice, interstate commerce next. Sorry Justice Sonia Sotomayer, the country is only in this quagmire because of the New Deal interpretation of the interstate commerce clause Most of the New Deal was struck down in the 1930s, that should be cause to question the constitutionality of everything that remains. From what I can tell, everything that remains just was hard to get standing to challenge within the courts. Now we have someone who can get standing very easily, going after it, right to the jugular.

array_key_first 10mo ago
The new deal is, like, one of three reason that the US isn't a complete shithole. The new deal is responsible for so, so much of the prosperity of the golden age of America that it cannot be understated.
- yieldcrv 10mo ago
  And most of it was struck down immediately, with the dismantling solved by the most serious threat of packing the Supreme Court by the President and his party what stands out to me is that this President is written about favorable in our history books despite that plan being far more egregious and unprecedented at the time in any case, the court shifted its tune as a compromise not as a matter of actual opinion of the constitution and like I previously wrote, everything else was just hard to challenge at all, unless you are a President suddenly trying to fire some folks the US advancing from a backwater to an economic powerhouse is great! I wonder if we can do it another way without leaning on the Interstate Commerce clause to regulate all facets of American life

lovich 10mo ago

Whelp. Here’s more sanewashing of this admin. This headline is false and helping to ameliorate their crimes. He directly said it was not an independent agency, he didn’t “suggest” it. But we’re in the era where organizations like the BBC have people resign because the King doesn’t like their version of reality so I guess I better brush up on my NewSpeak