[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.