[xpe]

> Govt. agencies can’t make laws

This is an unfortunately common response that often misses the point: U.S. government agencies do indeed have the power to make decisions with the force of law. Rule-making is a valid authority (subject to legal review of course)

[adastra22]

There are two cases in the Supreme Court right now that are expected to rule on this, overturning the ability for regulatory authorities to make rules covering things not explicitly stated in law.

[xpe]

I'm not familiar with those cases, but it seems to me that if such rules go in favor of "agencies only get to clarify where explicitly allowed" then there will a lot of undesirable consequences. Assuming legal ambiguities remain, with less administrative power, there will be less clarity! Less clarify on application, administration, and enforcement.

Perhaps the courts will have to step in clarify? But this won't solve the administrative issue. If agencies don't have "agency" to do their jobs well, that would be ironic.[1] Perhaps Congress will be motivated to write better laws?[2]

[1] I'm deeply suspicious of efforts to undermine agencies under the cover of "only Congress makes law"... I suspect is it often a guise of undermining the laws one party does not like. Or, sometimes, even as an effort to undermine the idea of regulation at all. The latter point is hardly hidden -- it is central to a lot of right-leaning rhetoric which seems to boil down to "regulation bad, freedom good". This level of reasoning would have Milton Friedman rolling in his grave, as some regulation _provably_ helps reduce market failures. (And even center-left people typically want markets to work well.) But I digress.

[2] Hah. The idea that we would give Congresspeople and their staff even more responsibility to specify laws _without_ an associated increase in their competence for those areas where the law applies strikes me as foolhardy.

[adastra22]

It’s called Chevron deference / doctrine, and yes the consequences would be far reaching. Whether the net benefit is good or bad is largely a subjective matter of political opinion.

[xpe]

Thanks. I just read [1].

> Whether the net benefit is good or bad is largely a subjective matter of political opinion.

Without knowing the intention of the author above, when I see the phrase "subjective matter of political opinion", it makes me wonder if it serves as a "semantic stop sign" or "thought-terminating cliché"[2].

WRT net benefits... it is one thing to have differing predictions about what will happen and quite another to assess each possible scenario.

I recognize differences of opinion and want a society that protects the freedoms to have them. However, to me, opinions matter much less than reasonable claims based on evidence. Luckily, when reading [1], there are many testable claims embedded in the arguments of the various justices.

For example, in the cases of an ambiguous law, who is better suited to understand the ambiguity... agency experts or judges? Which groups have better knowledge of the domain? Which have experience in engaging in sustained discussions with the industries they are regulating? Agencies have an objective advantage for both.

Here is my point: say we go through the, say, top twenty arguments and we dig into the details. I predict that most opinions one hears at the outset from the public don't survive contact with reality. Those opinions have to get tossed. What remains? Nuanced assessments of better and worse scenarios. By making these assessments more nuanced, the hope is we find workable and sensible compromises.

[1] https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

[2] https://en.wikipedia.org/wiki/Thought-terminating_cliché

[adastra22]

We live in a representative democracy where the powers of the government are constrained by constitutional law to be specific and enumerated, and aside from common-law precedent derive from a mandate by the people. Yet it is increasingly the case that the actual rules which citizens and corporations are required to follow are being set not by elected representatives but by unelected bureaucrats of government agencies, in some cases where there isn't even relevant and specific congressional authorization for action. In the case of TFA, the abolition of non-competes is something I can be 100% behind... but where is the specific law passed by congress authorizing the FTC to make and enforce this determination?

One side will say with some justification that these rules make sense and are definitely a net benefit, and we should expect this to be the case because the agency is run by technocrat experts who evaluate these policy decisions for a living and do a far better job than we can expect of even the best congressional staffers.

The other side will point out that it's a very fine line between the current, mostly harmless rule-setting actions of benevolent agency experts, and an unelected deep state that can become a tool of fascist ideologues. Our freedom is dependent on safeguarding our democracy, and that means no rules that don't trace their core to laws passed by elected representatives. These people would point to the disastrous actions of the DEA and FDA, for example, which is currently waging war on ADHD patients via the artificial Adderall shortage, or Operation Choke Point (google it).

Where you fall on this debate is a subjective matter of political opinion. There are pros and cons to both sides.

[xpe]

> Our freedom is dependent on safeguarding our democracy, …

Yes, I agree.

> and that means no rules that don't trace their core to laws passed by elected representatives.

I think this is too strong of a claim. Why?

We live under many rules that don’t trace back to laws elected by elected representatives. Many of our laws descend from common law which predates representative democracy.

Not to mention that there are tremendous sources of power outside one’s governmental sphere that constrain our options, such as culture, corporations, and other governments. Whether one calls these “rules” or “constraints” is sort of beside the point when you focus on a society’s ability to respond to undesirable forces. This leads to how I would restate your claim…

Perhaps a more accurate statement would be this: freedom depends on mechanisms such that the people can drive policy.

[xpe]

You say some things that make sense to me, but then you use the phrase “waging war”…

> FDA, for example, which is currently waging war on ADHD patients via the artificial Adderall shortage

Why do you choose this loaded language? This does not build credibility in my eyes. War means something, and it not that.

[xpe]

For what it is worth, in my comments I am attempting to put aside any subjective assessment of the noncompete ban being good or bad. I am very interested in the rational basis for the FTC having the authority to do it (or not).

[Jiro]

>For example, in the cases of an ambiguous law, who is better suited to understand the ambiguity...

"Understanding the ambiguity" is fine if we are talking about trying to figure out what was intended by the people who put the ambiguous phrases in. But the issue isn't about who can "understand" the ambiguity, it's about who's going to be making things up and giving the ambiguity as an excuse. Asking whether bureaucrats or judges are better at "understanding the ambiguity" is the wrong question--understanding something and doing it are very different things. They'd just understand that the law is supposed to be X, and give a spurious justification about it being Y instead anyway.

Your use of phrases like "thought-terminating cliche" makes you sound like a rationalist. In which case I hope you know what a quokka is. (For the uninitiated, a quokka is an animal that can't understand that someone might want to hurt it.) If someone has an agenda that is against your interests, having "better knowledge" and being "better suited to understand" and "having experience" just makes it easier for them to harm you.

[xpe]

Yes, I agree. Understanding the ambiguity is not the only criteria.

My comment two levels up was not a comprehensive assessment of the pros and cons of this policy issue. My goal was to highlight that while I recognize subjective opinions, I care about them relatively less until we fully pursue rational means of understanding.