[MCRed]

Also, the FCC should not be able to make rules like this. This is why we have a three branch system. Congress doesn't have the legal power, in the constitution, to give agencies the power to make laws (Even if they call them "Rules")

Increasingly over time these rules are becoming more and more draconian and including things that most people oppose.

For instance, there was an outcry about CISPA and COPA that killed those bills... so the FCC made an 800 page ruling on "net neutrality" and people accepted it, because they wanted net neutrality. (And who has time to read 800 pages?)

[apendleton]

> Congress doesn't have the legal power, in the constitution, to give agencies the power to make laws (Even if they call them "Rules")

What? Sure they do; there's nothing in the constitution that forbids congress from making a law delegating its authority to the executive (the idea that all of administrative law is unconstitutional isn't supported by anyone in the legal community to my knowledge). Agencies can't just make up rules that say whatever they want, though; they're limited to being able to regulate the things Congress has empowered them to regulate, and they have to say what their authorizing legislation is in the text of the rule.

In general, this is what we want. Congress should be deciding what gets regulated, and experts in the subject area should be deciding the specifics of the regulation. Example: Congress decides that not every quack snakeoil salesman should be able to put whatever he wants in a bottle and sell it as medicine, so medications should be regulated. But members of Congress, by and large, are not doctors or otherwise medical experts, so they should defer the business of deciding which medicines should be allowed, how they should safely be produced, etc., to experts. Hence, the FDA.

In the case of the FCC, Congress decided that, spectrum being a precious commodity, somebody needed to regulate how it should be parceled out so there was enough to go around and people didn't step on each other's toes. But again: they're not radio engineers, so they're not equipped to decide what the right power levels are, which parts of the spectrum should be used for what, and what the best enforcement mechanisms are to make sure people play by the rules. Hence, the FCC. In this case, they proposed a rule requiring manufacturers to put software safeguards in place that prevented end users from being able to make otherwise-compliant equipment exceed its legally-allowed broadcast power levels. You can think that's a bad idea (I do, too), but it's pretty clearly within their regulatory purview.

[chatmasta]

I agree with you that the system of federal administrative agencies is a mess. The top federal agencies hold amounts of power bordering on unconstitutional. They seem to represent a rogue branch of government, or at least artificially inflate the role of the executive branch. Of course, the point of the judicial branch is to restrict expansions of power from the other branches. Theoretically the judicial branch has the ability to restrict the capabilities of federal agencies, but it's extremely unlikely we will ever see a heavy ruling against them. There's wayyyyy too much special interest money entangled in the agencies for that to happen.

Still, to play devil's advocate, the agencies do have a purpose. They are able to regulate industries that move faster than real legislation. They can employ experts (as opposed to congressmen) to write the rules. Industries like tech and pharmaceuticals are governed by extremely complex market dynamics. The federal agencies that oversee them, such as the FCC (tech) and FDA (pharmaceuticals) employ dozens of experts who are familiar with how the industry actually works. They write the regulations because no other branch of government possibly could.

Federal agencies make it possible for congress to write laws with stipulations like "all matters pertaining to <EXTREMELY GENERAL DESCRIPTION OF INDUSTRY SUBTOPIC> shall be subject to the regulations of the <FEDERAL AGENCY> responsible for overseeing <INDUSTRY>." The agencies provide a way for congress to defer the details of lawmaking to a more flexible, adaptable agency that is actually familiar with the complex dynamics of the system being regulated.

..... in theory, of course. Whether this works in practice is another question. One could make the argument that no sufficiently complex market should be subject to any regulation other than the natural market rules. One could also argue that the ability of congress to defer lawmaking to agencies is tremendously unconstitutional and enables them to enact laws with greater breadth than should be possible.

Some reading I dug up on the subject:

http://heritageaction.com/2011/11/issue-profile-unconstituti...

http://www.jpands.org/hacienda/comm19.html

tl;dr "Thanks, Roosevelt!"

[dragonwriter]

> Of course, the point of the legislative branch is to restrict expansions of power from the other branches.

That's almost exactly the opposite of the point of the legislative branch, since the other branches have very little power not explicitly granted by the legislature, and the legislative branch principally acts by defining and granting functions to the executive and judicial branches.

> Theoretically the legislative branch has the ability to restrict the capabilities of federal agencies

More to the point, federal agencies only exist because they are created by Congress, and only have powers because they are given them by Congress.

Its not a theoretical power that Congress has over them, but a practical one whose exercise is the only reasons the agencies exist and have any power at all.

If Congress doesn't take action that you think it should against a federal agency, that's because a sufficiently large portion of Congress doesn't want to take that action, not because Congress has only a theoretical but not practical power over the agency.

> but it's extremely unlikely we will ever see a heavy ruling against them.

Congress doesn't make rulings, that's the judicial branch. Congress has substantially restricted the powers of commissions and even abolished them. (A notable example being the one that served as a structural model for pretty much all other "independent" regulatory agencies, the Interstate Commerce Commission, whose powers were stripped in a series of deregulation movements culminating in the abolition of the Commission in 1995.)

[chatmasta]

Yes you're right. I edited my comment, apparently while you were writing yours, to correct myself. I meant to say judicial branch, not legislative.

[dragonwriter]

The judicial branch also has made fairly sweeping rulings against both individual regulatory agencies and the ways in which Congress structures (or, rather, has structured in the past, since those rulings stopped the particular practices at issue) regulatory agencies, their powers, and their relations with Congress in general.