The track we're on currently is that when an offended party detects an overreach by the regulatory agency, they take it to court. That's how executive authority is currently constrained. So the executive agency is free to push the limits - until such time as someone is offended by the pushing. A reasonable question is - is that what the Founders intended? That our freedom is contingent every day upon the latest whim of an executive agency, and if we value that freedom, then we need to take it to court.. And the cost in time and money is ours to bear while the case is sorted out. I would hope the SCOTUS sees the Bigger Picture here and issues a broader decision that severely restricts executive authority, that if the Congress didn't specifically grant a power, that power does not exist.
That's a "government is way too big" argument, and I'm totally with you.
The Court is, historically, quite careful in keeping its rulings on-point. but even on-point and narrow-feeling rulings can have widespread effect. A flipping of the Chevron deference to "favor the citizen" in the case of ambiguity, as our criminal and civil law systems operate, would be subtle but far-reaching.
Wouldn't the laws have to be incredibly complex and detailed in order to cover every possible circumstance then? Or, is it your point that these kinds of laws and regulations shouldn't even be there in the first place?
You answer your own question with your third word. "Laws" are, per our Constitution, to be written by lawmakers. Yes, it is true that lawmakers cannot write every nuance, and that's where the bureaucrats can step in, but Chevron is about ambiguity and the mis-assignment of resolution of ambiguity to bureaucrats rather than lawmakers.
I have no opinion on the two fishery matters, other than to, as the article notes, say that Congress, not the executive branch, should write the governing rules when there aren't already sufficiently clear ones in place.
I have an opinion on bump stocks, but it's irrelevant, because the argument here is that Congress, not the BATFE, should ban them if there is the political will to do so.
You've repeatedly written that you believe the people should decide issues through their representatives. Who represents you? Your Congressman and Senator, or some careerists way down the Executive Branch hierarchy?
Ideally, there would be no ambiguities in the laws which would make it easy then for bureaucrats to draw the correct conclusions. However, we all know that language itself can lend itself to ambiguity. I'm no fan of bureaucracy which I consider to be a necessary evil with emphasis upon the "evil" when they use a law as a pretext for imposing their own views through regulations. I would say that Congress can correct the ambiguities through modifying laws if they disagree with the conclusions of the bureaucrats or through cutting funding to the agencies or their enforcement mechanisms. But, Congress would too often today just posture going for sound bites instead of substance.
If the Court tells Congress that, no, they cannot defer resolution of ambiguity to the executive branch's agencies, that instead, the benefit of the doubt goes to the citizen rather than the government, would you object?
That seems completely unworkable though I wouldn't be surprised if an ideologically bent court went that route. It's a shame that the SC judges today come exclusively through the judicial system. There's a lack of concern over the real world consequences of their decisions forgetting that the law was made for humanity not angels. In effect, you would have hundreds of millions of Americans with the power to decide not just what to do if there was an ambiguity but also to decide whether or not there was an ambiguity. That's an open invitation to chaos.
If you allow individuals to decide if the regulations are ambiguous and so their response to them can be anything they think appropriate then that is an accurate of description of anarchy or as the Bible puts it in the book of Judges - "Everyone did what was right in his own eyes." Given that the bureaucrats are necessary as you said yourself, the voters through their reps can get the laws changed to remove ambiguities and to rebuke the bureaucrats when they go too far.
Some would be incredibly complex, but, many should not be there in the first place. If Congress was to restrict its legislation to the areas of authority granted it by the Constitution (rather than our representatives getting their grubby little fingers in everybody's pies), they would not have such difficulty maintaining proper laws and making them as "complex and detailed" as necessary (most laws for which the Constitution grants them authority should not need to be that complex). Perfect example - Title 42. Pretty much all of it is beyond the scope of the powers granted the federal government by the Constitution (I looked through it because of a bill going through the House, H.R. 3832 - the "Disease X Act of 2023" which modifies 42 USC 247d to grant the federal government *more* emergency power in case of disease and to essentially legalize Wuhan even here in the US. Government has no mandate nor authority from the Constitution to be involved in healthcare *at all.* Eliminate all laws (not to mention subsidies) regarding healthcare, and Congress' job gets simpler (and the bureacracy grows *smaller*).
If you're referring to Covid, let's be clear: it wasn't a pandemic. And yes, I would have the states deal with it individually. The constitution gives the federal government no authority over things like healthcare, farming, energy, food, etc. These things should all be handled by free enterprise and the states.
This is the essence of the Tenth Amendment - any power not explicitly granted the federal government by the Constitution does *NOT* belong to the federal government - it belongs to the states and the people:
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Actually? Yes. Entering into the contract known as the Constitution was voluntary. There is no clause binding a State to remain in the Union if the Union ceases to serve its purpose. This too is the essence of the statement in the Declaration of Independence that:
...whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The Congressional trend of letting the Executive do its job has grown greatly during my lifetime. I used to think it was laziness, then the desire to to avoid any controversy that might cost votes, then I started to notice how in large part our representatives were just going to DC to vote the way of whichever party put them there. It's probably some of all three. In town halls I have rarely had my questions answered in such a way that I thought my representative had a better, deeper grasp of the Constitution than I do. Most voters don't, and so don't take that into account when electing the haircut of choice to go forth and pwn.
Legislating takes time away from fundraising, which is what they do something like 80% of the time. I also think that they are desperate not to get on the record on any matter of any controversy, lest it be used against them in election season.
There's the excuse, and it carries *some* weight, that they cannot possibly vet everything they have to vote on, so they rely on committees and peers to look at some while they look at others.
On the other hand, Justin Amash read every word of every bill he voted on, and posted a reason for his vote. This should be the norm, not the incredibly rare exception.
One other note--Agency X ostensibly reports to the executive, but as we have seen--these agencies have become a law unto themselves. The "non-political" employees do what they want and often ignore the titular heads (read, political appointees) of their departments. The Supreme Court needs to stop agency rule/policy setting because it often doesn't even represent the wishes of the elected executive whether or not they are a megalomaniac--further, the bureaucracy has certainly become megalomaniacal in implementing its agenda regardless of who is in the White House.
That's really it. There's an adage that politics should be as local as possible. This extends beyond the notion of local issues benefiting most from local decisions, and to accountability.
One of my biggest reasons for supporting Brexit was the increase in self-determination for the people of the UK. The EU mandarins in Brussels are about as far removed from electoral accountability as can be imagined in a nominally representative system, giving the British masses virtually no say in what they did. So it goes with the entrenched bureaucracy - the deciders of many policies and setters of myriad regulations are so far removed from voter accountability as to make the idea a farce.
I've long said that the Constitution gives Congress *no* authority to delegate their authority. The bureaucracy should never be making "rules" or "regulations" - any Executive department/bureau should have power only to *enforce* laws written by Congress - not to in any way decide how they are enforced or defined. Congress, and *only* Congress, is granted in the Constitution power to legislate (it is mentioned twice - Article 1, Section 1, paragraph 1, and Article 1, Section 8, paragraph 18), and that is the way it should be. Rules and regulations written by the alphabet agencies are treated as law, and as such, are entirely unconstitutional. The reign of the bureaucracy needs to end.
The track we're on currently is that when an offended party detects an overreach by the regulatory agency, they take it to court. That's how executive authority is currently constrained. So the executive agency is free to push the limits - until such time as someone is offended by the pushing. A reasonable question is - is that what the Founders intended? That our freedom is contingent every day upon the latest whim of an executive agency, and if we value that freedom, then we need to take it to court.. And the cost in time and money is ours to bear while the case is sorted out. I would hope the SCOTUS sees the Bigger Picture here and issues a broader decision that severely restricts executive authority, that if the Congress didn't specifically grant a power, that power does not exist.
That's a "government is way too big" argument, and I'm totally with you.
The Court is, historically, quite careful in keeping its rulings on-point. but even on-point and narrow-feeling rulings can have widespread effect. A flipping of the Chevron deference to "favor the citizen" in the case of ambiguity, as our criminal and civil law systems operate, would be subtle but far-reaching.
Wouldn't the laws have to be incredibly complex and detailed in order to cover every possible circumstance then? Or, is it your point that these kinds of laws and regulations shouldn't even be there in the first place?
You answer your own question with your third word. "Laws" are, per our Constitution, to be written by lawmakers. Yes, it is true that lawmakers cannot write every nuance, and that's where the bureaucrats can step in, but Chevron is about ambiguity and the mis-assignment of resolution of ambiguity to bureaucrats rather than lawmakers.
I have no opinion on the two fishery matters, other than to, as the article notes, say that Congress, not the executive branch, should write the governing rules when there aren't already sufficiently clear ones in place.
I have an opinion on bump stocks, but it's irrelevant, because the argument here is that Congress, not the BATFE, should ban them if there is the political will to do so.
You've repeatedly written that you believe the people should decide issues through their representatives. Who represents you? Your Congressman and Senator, or some careerists way down the Executive Branch hierarchy?
Ideally, there would be no ambiguities in the laws which would make it easy then for bureaucrats to draw the correct conclusions. However, we all know that language itself can lend itself to ambiguity. I'm no fan of bureaucracy which I consider to be a necessary evil with emphasis upon the "evil" when they use a law as a pretext for imposing their own views through regulations. I would say that Congress can correct the ambiguities through modifying laws if they disagree with the conclusions of the bureaucrats or through cutting funding to the agencies or their enforcement mechanisms. But, Congress would too often today just posture going for sound bites instead of substance.
If the Court tells Congress that, no, they cannot defer resolution of ambiguity to the executive branch's agencies, that instead, the benefit of the doubt goes to the citizen rather than the government, would you object?
That seems completely unworkable though I wouldn't be surprised if an ideologically bent court went that route. It's a shame that the SC judges today come exclusively through the judicial system. There's a lack of concern over the real world consequences of their decisions forgetting that the law was made for humanity not angels. In effect, you would have hundreds of millions of Americans with the power to decide not just what to do if there was an ambiguity but also to decide whether or not there was an ambiguity. That's an open invitation to chaos.
Wow, alarmist much?
I trust average Americans a whole lot more than I trust entrenched bureaucrats.
You're a fan of the voters deciding, via their reps. How is the reps abandoning their job to the entrenched bureaucracy an expression of that?
If you allow individuals to decide if the regulations are ambiguous and so their response to them can be anything they think appropriate then that is an accurate of description of anarchy or as the Bible puts it in the book of Judges - "Everyone did what was right in his own eyes." Given that the bureaucrats are necessary as you said yourself, the voters through their reps can get the laws changed to remove ambiguities and to rebuke the bureaucrats when they go too far.
Some would be incredibly complex, but, many should not be there in the first place. If Congress was to restrict its legislation to the areas of authority granted it by the Constitution (rather than our representatives getting their grubby little fingers in everybody's pies), they would not have such difficulty maintaining proper laws and making them as "complex and detailed" as necessary (most laws for which the Constitution grants them authority should not need to be that complex). Perfect example - Title 42. Pretty much all of it is beyond the scope of the powers granted the federal government by the Constitution (I looked through it because of a bill going through the House, H.R. 3832 - the "Disease X Act of 2023" which modifies 42 USC 247d to grant the federal government *more* emergency power in case of disease and to essentially legalize Wuhan even here in the US. Government has no mandate nor authority from the Constitution to be involved in healthcare *at all.* Eliminate all laws (not to mention subsidies) regarding healthcare, and Congress' job gets simpler (and the bureacracy grows *smaller*).
And so, you would have responses to a national pandemic addressed solely by the separate states?
If you're referring to Covid, let's be clear: it wasn't a pandemic. And yes, I would have the states deal with it individually. The constitution gives the federal government no authority over things like healthcare, farming, energy, food, etc. These things should all be handled by free enterprise and the states.
This is the essence of the Tenth Amendment - any power not explicitly granted the federal government by the Constitution does *NOT* belong to the federal government - it belongs to the states and the people:
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-amendment-x-2
Do you believe that states, then, have the right to secede?
Actually? Yes. Entering into the contract known as the Constitution was voluntary. There is no clause binding a State to remain in the Union if the Union ceases to serve its purpose. This too is the essence of the statement in the Declaration of Independence that:
...whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Then, that's where we have to part company with regards to how we understand the tenth amendment.
The Congressional trend of letting the Executive do its job has grown greatly during my lifetime. I used to think it was laziness, then the desire to to avoid any controversy that might cost votes, then I started to notice how in large part our representatives were just going to DC to vote the way of whichever party put them there. It's probably some of all three. In town halls I have rarely had my questions answered in such a way that I thought my representative had a better, deeper grasp of the Constitution than I do. Most voters don't, and so don't take that into account when electing the haircut of choice to go forth and pwn.
Agreed.
Legislating takes time away from fundraising, which is what they do something like 80% of the time. I also think that they are desperate not to get on the record on any matter of any controversy, lest it be used against them in election season.
There's the excuse, and it carries *some* weight, that they cannot possibly vet everything they have to vote on, so they rely on committees and peers to look at some while they look at others.
On the other hand, Justin Amash read every word of every bill he voted on, and posted a reason for his vote. This should be the norm, not the incredibly rare exception.
It's premature I know, but acting on an expectation of what this Court's majority opinion will be, I'm already feeling better about the future.
It's sad that the Left is so hell-bent on destroying the Court's reputation, and/or turning it into a rubber stamp for whatever they want to do.
One other note--Agency X ostensibly reports to the executive, but as we have seen--these agencies have become a law unto themselves. The "non-political" employees do what they want and often ignore the titular heads (read, political appointees) of their departments. The Supreme Court needs to stop agency rule/policy setting because it often doesn't even represent the wishes of the elected executive whether or not they are a megalomaniac--further, the bureaucracy has certainly become megalomaniacal in implementing its agenda regardless of who is in the White House.
That's really it. There's an adage that politics should be as local as possible. This extends beyond the notion of local issues benefiting most from local decisions, and to accountability.
One of my biggest reasons for supporting Brexit was the increase in self-determination for the people of the UK. The EU mandarins in Brussels are about as far removed from electoral accountability as can be imagined in a nominally representative system, giving the British masses virtually no say in what they did. So it goes with the entrenched bureaucracy - the deciders of many policies and setters of myriad regulations are so far removed from voter accountability as to make the idea a farce.
I've long said that the Constitution gives Congress *no* authority to delegate their authority. The bureaucracy should never be making "rules" or "regulations" - any Executive department/bureau should have power only to *enforce* laws written by Congress - not to in any way decide how they are enforced or defined. Congress, and *only* Congress, is granted in the Constitution power to legislate (it is mentioned twice - Article 1, Section 1, paragraph 1, and Article 1, Section 8, paragraph 18), and that is the way it should be. Rules and regulations written by the alphabet agencies are treated as law, and as such, are entirely unconstitutional. The reign of the bureaucracy needs to end.