6 ms·

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
- bigstrat2003 10mo ago
  The legislature also has only the powers enumerated in the Constitution. As "create independent agencies" is not one of those powers, it comes down to a matter of interpretation as to whether one of the powers granted to Congress implies the ability to create independent agencies. But once you enter the land of interpretation, it's, well... open to interpretation, and thus it's not unreasonable for someone to take issue with a certain interpretation.
  - stvltvs 10mo ago
    Proposal: constitutional amendment granting Congress the power to institute independent agencies lead by independently elected officials directly responsible to the voting public and subject to Congressional impeachment. For example, make attorney general an elected, independent position.
    - CGMthrowaway 10mo ago
      https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190048 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190048
- curt15 10mo ago
  The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than to prevent another one.
  - stvltvs 10mo ago
    Except they fumbled the ball by creating a unitary executive. I don't blame them too much because that's all they'd known, the US was a hundred times smaller, and they were making it up as they went. Democracy would be more resilient to an executive coup if its powers were split among several independently elected officials, like we see in some state governments today. Edit: This is what I'm referring to. https://en.wikipedia.org/wiki/Decision_of_1789 https://en.wikipedia.org/wiki/Decision_of_1789
dragonwriter 10mo ago
“Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.
- JumpCrisscross 10mo ago
  > have always been a distinction within the executive branch “Always” is doing heavy lifting here. Independent agencies were a paradigm shift under FDR. We’re presumably seeing a shift away from that paradigm.
- CGMthrowaway 10mo ago
  > “Independent” agencies have always been a distinction within the executive branch The common use of the expression "fourth branch of government" to describe independent agencies belies your assertion here.
  - dragonwriter 10mo ago
    The common use of that termis to describe administrative agencies with regulatory power, independent of whether they are independent agencies; its a (hostile and derogatory reference to) bureaucracy distant from elected officials, not a theory of the positioning of independent agencies in contrast to other executive agencies.
    - CGMthrowaway 10mo ago
      Citation needed. My reference goes all the way back to 1937 and is specific to independent agencies. > Almost fifty years of experience has accustomed lawyers and judges to accepting the independent regulatory commissions, in the metaphor, as a headless 'fourth branch' of government. Source: 1984 Columbia Law article, referencing the 1937 Brownlow Committee Report. https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1211&context=faculty_scholarship https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?art... Also Wikipedia: "The independent administrative agencies of the United States government may also be referred to as a ‘fourth branch’." https://en.wikipedia.org/wiki/Fourth_branch_of_government https://en.wikipedia.org/wiki/Fourth_branch_of_government
Animats 10mo ago
That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1] U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle. [1] https://apnews.com/article/trump-supreme-court-copyright-official-firing-c5ccca29ff5413815347340ffa300f69 https://apnews.com/article/trump-supreme-court-copyright-off...
- Animats 10mo ago
  Related to this, there's a bill to move immigration judges from Homeland Security to the judicial branch, making them "Article 3 judges". That's currently considered unlikely to pass this session, but maybe next session.
kjksf 10mo ago
To everyone asking: why is it crazy? Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do. Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court. And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch. And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president. And why should you care about this? Because every 4 years you can vote for a different president. You can't vote for the head of FCC.
- jakelazaroff 10mo ago
  > You can't vote for the head of FCC. FCC commissioners are appointed by the president (who is elected) and confirmed by senators (who are also elected). The chair is then chosen from those commissioners by the president (who, again, is elected). Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. Sure, you don't cast a ballot for them directly, but you do wield influence by electing leaders to represent your interests.
  - anamax 10mo ago
    > Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. The Secretary of State serves at the pleasure of the president. You're arguing that FCC commissioners shouldn't.
    - jakelazaroff 10mo ago
      Where are you reading that in my comment?
SubiculumCode 10mo ago
To execute is different than having the royal prerogative, or at least it did to the founders: https://jach.law.wisc.edu/exec-power-royal-prerogative-founders-presidency/ https://jach.law.wisc.edu/exec-power-royal-prerogative-found...

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

bigstrat2003 10mo ago
The legislature also has only the powers enumerated in the Constitution. As "create independent agencies" is not one of those powers, it comes down to a matter of interpretation as to whether one of the powers granted to Congress implies the ability to create independent agencies. But once you enter the land of interpretation, it's, well... open to interpretation, and thus it's not unreasonable for someone to take issue with a certain interpretation.
- stvltvs 10mo ago
  Proposal: constitutional amendment granting Congress the power to institute independent agencies lead by independently elected officials directly responsible to the voting public and subject to Congressional impeachment. For example, make attorney general an elected, independent position.
  - CGMthrowaway 10mo ago
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190048 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190048
curt15 10mo ago
The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than to prevent another one.
- stvltvs 10mo ago
  Except they fumbled the ball by creating a unitary executive. I don't blame them too much because that's all they'd known, the US was a hundred times smaller, and they were making it up as they went. Democracy would be more resilient to an executive coup if its powers were split among several independently elected officials, like we see in some state governments today. Edit: This is what I'm referring to. https://en.wikipedia.org/wiki/Decision_of_1789 https://en.wikipedia.org/wiki/Decision_of_1789

dragonwriter 10mo ago

“Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.

JumpCrisscross 10mo ago
> have always been a distinction within the executive branch “Always” is doing heavy lifting here. Independent agencies were a paradigm shift under FDR. We’re presumably seeing a shift away from that paradigm.
CGMthrowaway 10mo ago
> “Independent” agencies have always been a distinction within the executive branch The common use of the expression "fourth branch of government" to describe independent agencies belies your assertion here.
- dragonwriter 10mo ago
  The common use of that termis to describe administrative agencies with regulatory power, independent of whether they are independent agencies; its a (hostile and derogatory reference to) bureaucracy distant from elected officials, not a theory of the positioning of independent agencies in contrast to other executive agencies.
  - CGMthrowaway 10mo ago
    Citation needed. My reference goes all the way back to 1937 and is specific to independent agencies. > Almost fifty years of experience has accustomed lawyers and judges to accepting the independent regulatory commissions, in the metaphor, as a headless 'fourth branch' of government. Source: 1984 Columbia Law article, referencing the 1937 Brownlow Committee Report. https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1211&context=faculty_scholarship https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?art... Also Wikipedia: "The independent administrative agencies of the United States government may also be referred to as a ‘fourth branch’." https://en.wikipedia.org/wiki/Fourth_branch_of_government https://en.wikipedia.org/wiki/Fourth_branch_of_government

Animats 10mo ago

That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1] U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle. [1] https://apnews.com/article/trump-supreme-court-copyright-official-firing-c5ccca29ff5413815347340ffa300f69 https://apnews.com/article/trump-supreme-court-copyright-off...

Animats 10mo ago
Related to this, there's a bill to move immigration judges from Homeland Security to the judicial branch, making them "Article 3 judges". That's currently considered unlikely to pass this session, but maybe next session.

kjksf 10mo ago

To everyone asking: why is it crazy? Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do. Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court. And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch. And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president. And why should you care about this? Because every 4 years you can vote for a different president. You can't vote for the head of FCC.

jakelazaroff 10mo ago
> You can't vote for the head of FCC. FCC commissioners are appointed by the president (who is elected) and confirmed by senators (who are also elected). The chair is then chosen from those commissioners by the president (who, again, is elected). Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. Sure, you don't cast a ballot for them directly, but you do wield influence by electing leaders to represent your interests.
- anamax 10mo ago
  > Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. The Secretary of State serves at the pleasure of the president. You're arguing that FCC commissioners shouldn't.
  - jakelazaroff 10mo ago
    Where are you reading that in my comment?

SubiculumCode 10mo ago

To execute is different than having the royal prerogative, or at least it did to the founders: https://jach.law.wisc.edu/exec-power-royal-prerogative-founders-presidency/ https://jach.law.wisc.edu/exec-power-royal-prerogative-found...