[snowwrestler]

It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any more; the agencies all find a way to keep “essential services” running anyway.

Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage? I’m not a lawyer so I know I’m out of my depth. But as a U.S. citizen living under a written Constitution, I have a hard time understanding why my country should make itself beholden to England’s legal history specifically.

[ihumanable]

I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work.

Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth.

The dismantling of the administrative state leaves us in a precarious position where we either end up completely unregulated (which I know some people would welcome, but as someone that enjoys not getting asbestos in my breakfast cereal, I think we need some regulations). Do we just end up with massive packages of regulations written up by ALEC and other private groups that then get handed to legislators and passed?

Sure an unelected bureaucrat sounds bad, but if the alternative of paying some guy $40k a year to think about these issues and draw up regulation is to let the person being regulated write their own rules, I'll take the former. I suspect the latter regulations will end up being whatever makes the most profit for the person being regulated, and if we all have to breathe lead because it makes some company's profits go up then so be it.

The government isn't always on the side of the common man, but neither are multinational corporations, and the multinational corporations are pretty up front about being in it for themselves.

[whoopdedo]

> Are there 435 people in this nation well versed enough to write detailed regulations

That's part of the problem. 435 is far too low for a representative democracy. The U.S. has the highest representation ratio among OECD nations[1]. The size of Congress has been held at this arbitrary number despite the size of the country growing threefold. The value of being in Congress, or being able to influence a member of Congress is enormous. As is the competition to get into one of those 435 seats. Is it any wonder big money controls so much of politics now?

[1] https://www.pewresearch.org/fact-tank/2018/05/31/u-s-populat...

[greyface-]

> 435 is far too low for a representative democracy.

Imagine a world in which the Congressional Apportionment Amendment had been ratified in 1789. The House would have more than 6,000 members today. https://en.wikipedia.org/wiki/Congressional_Apportionment_Am...

[colejohnson66]

If it had been ratified in 1789, the "mathematical discrepancy" would have appeared between 8 and 10 million citizens. We're well past that now, and could ratify it if the states wanted to screw over Congress.[a] It wouldn't even need to be reintroduced, as submitted amendments don't "expire".[b]

[a]: Twelve states already signed on, just need a few dozen more

[b]: Case in point, the 27th Amendment[0] was submitted to the states for ratification at the same time (1789), but never had enough states sign on until 1991.

[0]: https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_th...

[jfengel]

Yes, we have 435 people who could do that.

But in any given year, at least 200 of them will be elected specifically for the purpose of ensuring that government does nothing at all. So the remaining ones go to extraordinary effort to achieve even the basics, and often fail.

[anfilt]

Like things are quite partisan at the moment in the congress. You don't want dead lock, but you do want things to be somewhat difficult to change other wise you will get lots of policy, regulatory and even legal whiplash. If things change too often it could even be worse. Ideally there is some middle ground between deadlock and whip lash. Constant flux is worse than dead lock. It's even why a lot laws regarding regulation, policy ect.. have a date they became effective so people can prepare.

[otterley]

You're kind of mixing up two different things that can be separately analyzed and performed. One is the writing of regulations, which Congress can (and probably should) delegate to administrative bodies. But the interpretation and enforcement of those regulations can, and often does, get put in front of courts. Administrative law judges specialize in hearing cases involving these regulations.

The question in this case is whether juries are also needed in order to survive Constitutional scrutiny, and this opinion concludes it does. So we don't necessarily have to throw out the baby with the bathwater: administrative agencies can coexist with the need for protections for criminal and civil defendants who are subject to the rules they promulgate.

[zozbot234]

> Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth.

They certainly could be well-versed enough to supervise the work of picking the best proposals in each of these domains. Each Congress-critter has enough paid staff to basically be their own public-policy think tank.

[darawk]

They can delegate to agencies. The ruling isn't preventing them from doing that, it's just preventing the adjudication of penalties from being carried out by those agencies.

The SEC still gets to make the rules, they just don't also get to impose penalties on their own, without a jury trial.

[beerandt]

In theory, yes.

From a practical perspective, many of these rules are only implemented and enforceable because of the "in-house" self-adjudication framework, that operates on the presumption that it's own regs are lawfully valid, and don't have to repeatedly convince outside judges and juries to choose to enforce the sometimes absurd or overreaching rules that only make logical and legal sense to those sheltered within the bureaucratic bubble.

And they only avoid being struck from the books entirely because self-adjudication basically negates any chance of 1st-round judicial review/ scrutiny and other legal protections that are baked into Article III courts.

Which has resulted in agencies being far more aggressive with their rule making than they'd otherwise be.

Additionally, taking into account the game-theory of the framework, the upfront costs and risk vs reward put applicants at a major disadvantage, even before you take into account the effectively endless resources at the disposal of the government. Add the fact that beurocratic delay can tactically benefit an "adversarial" govt agent at little to no net cost or consequence to them personally or to the agency. while simultaneously increasing the applicant's direct application/ compliance/ litigation costs, plus costs and other risks incurred by delay of the project, costs due to govt-demanded project changes or added permitting conditions, and the uncertainty of whether the project is ultimately approved/ permitted at all.

It's not an "end of the world" ruling as some are claiming, but it will have substantial higher order effects beyond ability to impose penalties.

[darawk]

Ya, I agree with you on all that. I will note however that they only began self-adjudicating in 2011, so on its own this probably isn't a big deal. If the non-delegation principle is expanded by the supreme court though, it could be.

[ghufran_syed]

There are only 15 cabinet secretaries, each if which heads an executive branch agency. If 15 such can manage and set priorities for such an agency, it should be much easier for 435 people to spread the load and oversee those agencies, including the relevant degree of delegation to agency or independent experts that might be appropriate to a particular issue

[bullfightonmars]

… those 15 cabinet secretaries employ more than 4 million people.

[superdug]

Who’s historical court would you like to reference? We’ve not been a country for as long as there have been traditions and laws about finance in particular. We fought for independence from a monarchy and its kingdom, not to be free from governance.

[otterley]

We could have started with our own legal decisions without reference to precedent. After all, that's what early English decisions themselves frequently did. They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.

[Dracophoenix]

>After all, that's what early English decisions themselves frequently did.

Not really. What's commonly called English Common Law is itself an Anglo-Saxon bastardization of Norman Law. Even American Law borrows directly from Norman Law in the formers now dwindling but still surviving usage of Latin.

>They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.

While I agree with the premise that is how law should be, that's generally not how it was nor is it so simple to accomplish. A quote to one should remember is that "[A]ny Anglo-American lawyer must cope with a sneaking feeling that there is no such thing as first principles, just one damned case after another."

[adrianba]

At the founding, the Constitution documented all the things that were going to be different, but courts were intended to continue to apply the rest of the common law as it was. So, it's less about being beholden to England's legal history as much as it is being beholden to American history as it was at the time. It's just that most of the legal writing that courts depended upon was published by English legal scholars.

One of the downsides of the fixed written Constitution being hard to change is that you end up with these strange rules where the law today is dependent upon intuition about how a current problem would have been viewed through the lens of the common law at the time of the founding, and we mostly only have English legal treatises to fall back on, so it feels like being beholden to English legal history.

[vannevar]

>It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state...

"Interesting" to say the least. Trying to govern a modern nation of 370 million people based on a literal 18th-century interpretation of a Constitution designed to govern a handful of former colonies is going to be a (very predictable) disaster, which is why the Court hasn't done it before.

[refurb]

Appeal to modernity fallacy (I just invented it).

But you’re wrong to argue the “court hasn’t done it”, because the court has been doing it all along. It’s called precedence.

[vannevar]

I was referring specifically to striking down long-standing precedents that endorsed mechanisms like SEC enforcement, and interpreting a right of privacy. What we're seeing is a dramatically stripped-down view of the Constitution. If it were being done as part of a broad social consensus that included a plan to revamp the Constitution to meet modern needs, it would be difficult but beneficial in the long run. But what's happening is more akin to tearing down your own house while you're living in it, with no plan for how to rebuild it.

[beerandt]

You say tearing down, I say reverting tacky renovations that clash with the intended architectural style.

The structural bones of the constitution itself remain strong, and are made more resilient by removing ad-hoc modifications currently straining that framework beyond its intended yielding limits.

[vannevar]

The framing of a house is strong, too, but you can't live in it. Our society and economy are mind-boggling complex compared to the state they were in 1789. Whether you liked the renovations or not is immaterial, they serve a function. Unless you have a plan to replace that function (other than just hand-waving "send it all to the courts"), it will be a disaster.

[xyzzyz]

This country became a world superpower with 100 million residents before it got any of the modern administrative state.

[eesmith]

I think you've got things a bit off. I think more correct ones are:

- "This country became a world power with 76 million residents in 1900 before it got any of the Progressive era administrative state."

- "The country became a world superpower with 180 million residents in 1960 before it got the modern administrative state"

You wrote "world superpower", but the US didn't become a world superpower until WW2, well after ~1915, which is when the population reached 100M.

While the US started becoming a world power in 1898, with the Spanish-American War, and fully became a world power by WWI, that was after the Interstate Commerce Commission was formed in 1887, as the first administrative agency.

Now, you wrote "modern", which of course is in the eye of the beholder and likely is meant to exclude the ICC. Did the modern era start in 1906, with the FDA and the Federal Meat Inspection Act? Or Wilson, with the Federal Reserve (1913) and the FTC (1914)? Or the New Deal (1930s), like the SEC (1934)?

You'll note that all of those were before the US became a modern world superpower, and several before the US population reached 100M.

On the other hand, this beholder - https://ballotpedia.org/Administrative_state - points out that the modern administrative state didn't start until 1964 with Johnson's Great Society programs.

Here's another equally true statement:

- "The country became a world superpower with 203 million residents in 1970 before 18 year olds had the right to vote."

While true, that wouldn't justify removing the franchise from modern 18 year old.

Your observation, even when corrected, seems to be similarly weak as an argument to remove administrative agencies.

[throw0101a]

> Or Wilson, with the Federal Reserve (1913) […]

The Fed wasn't even the first US central bank. The Founding Fathers (e.g., Morris, Hamilton) created them very early on:

* https://en.wikipedia.org/wiki/History_of_central_banking_in_...

[eesmith]

As I understand it, the complaint about the "administrative state" is that administrative agencies have the ability to regulate and assess fines or other judgments that should properly be part of Congress and the court system.

For example, the Federal Reserve can assess fines without going to court, like: "Federal Reserve Fines Deutsche Bank $41 Million for Deficient Anti-Money Laundering Program" - https://www.wsj.com/articles/federal-reserve-fines-deutsche-...

Did the First Bank of the US have regulatory abilities and the ability to access civil fines?

https://en.wikipedia.org/wiki/First_Bank_of_the_United_State... says it "did not set monetary policy, regulate private banks, hold their excess reserves, or act as a lender of last resort", which would suggest the answer is "no".

If correct, that would mean it's not part of the "administrative state".

[woodruffw]

The practical answer is that every country needs a body of law to "bootstrap" with, and English common and case law isn't the worst place to start.

[PeterisP]

And the two major alternative starting points used in practice are Roman law or Sharia law, both of which are likely even less acceptable to someone who doesn't want the baggage of English common law.

On the other hand, in the civil law systems when new countries are formed, as soon as you get the core laws passed (which takes some years of transition) you do generally make a clean start where only the new code of laws matter and everything else is discarded - you explicitly choose which parts of earlier code get included in the new laws, and that's it, old laws get pulled out only if there's a relevant dispute about some events which happened back when those old laws were in force.

[IG_Semmelweiss]

The code of Hammurabi (eye for an eye) seemed to be popular back in the day.

One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.

[throw0101a]

> The code of Hammurabi (eye for an eye) seemed to be popular back in the day.

"Eye for an eye" comes from the Book of Exodus, and it was meant not as a prescription, but as a limitation:

> The intent behind the principle was to restrict compensation to the value of the loss.[1]

* https://en.wikipedia.org/wiki/Eye_for_an_eye

[PeterisP]

While Book of Exodus may be a major bringer of "eye for an eye" to western culture, it is certainly not the origin of the principle. The Hammurabi code predates the events described in the book of Exodus (and thus the book of Exodus) by many centuries, and does encode "Eye for an eye" as a literal prescription (If an citizen should blind the eye of another citizen, they shall blind his eye.)

So it was also a prescription - but yes, as you say, it is also a limitation for retaliation, assigning an equivalent punishment to limit escalation of vengeance.

[otterley]

No they don't. As I said elsewhere, even early English common law was often not written with reference to precedent. You'll see this if you read early English cases.

[snowwrestler]

Sure our forefathers needed some bootstraps, but we’re coming up on 250 years of independence here.

[woodruffw]

Practical, not good :-)

[dragonwriter]

> Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage?

No, actually, the revolution mainly had the opposite intent: anger that England was denying the English colonists the rights they were entitled to as Englishmen and would have enjoyed in England.

[mistrial9]

IANL a quick look here [0] does say that court case United States v. Wonson (1812) established the historical test, which interpreted the amendment as relying on English common law to determine whether a jury trial was necessary in a civil suit; around the same time as the War of 1812.

[0] https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_Unite...

[usrn]

We fought the war to restructure the government. I think if you told the revolutionaries they were fighting to abandon those traditions they'd be very upset.