It's been this way at least since the Administrative Procedure Act. Solidified later with Chevron. Chevron is struck down, but in effect not too much has changed.
I have some skepticism of the administrative branch but it makes sense to have a nimble government. When they make bad decisions it is Congress prerogative to write law to guide these bureaucracies. The problem is the US Congress is broken.
Yes, that is the way federal agencies work. Details of complex systems are decided by (hopefully apolitical, public-good-oriented) specialists in the field of interest.
One alternative is that Trump can do it at will. Or, to add a few more steps, Trump can fire the FCC head at will, replace him with a lackey, and then do it at will.
> [Laws] are decided by (hopefully apolitical, public-good-oriented) specialists in the field of interest
This doesn't sound to me at all like how a democratic country is supposed to function. It feels like you're describing China rather than the US.
> Trump can do it at will.
Which is also not how our constitution is supposed to work. The executive branch (which includes both the president and his appointees) is not supposed to be able to make laws, only execute on existing law.
Yes, I know this is how the system works these days. I'm just lamenting how it went so wrong...
"This doesn't sound to me at all like how a democratic country is supposed to function."
There is a family of interesting theories, or perhaps if you prefer, simply a way of looking at history in which you don't consider the "United States" as a single governance structure that has existed back to 1776, but as a series of related, but distinct entities with distinct "social contracts" (a term laden with some philosophical baggage, here I just use it in a very general sense of what people expect from each other in various roles), and distinct theories of governance. While the later entities wrap themselves in the 1776 flag the current ruling structure is quite different from that era. From this point of view you can even go back and include the Continental Congress as the starting point of the "United States" and gain some insight into the way governance can fail as well.
I mention this because it may help free your mind up to consider how the systems really work today beyond the at-times jingoistic "Democracy!". There's a lot of flexibility in how you approach this because it's all opinion anyhow, but there is a strong case to be made that this is the "technocrat" era, in which the executive branch has been given a lot more power both by design and by the stresses of history to give more power to "experts" to deal with the radical changes the world has undergone. I think I can say something generally politically agreeable by pointing out that Congress doesn't seem to be particularly good at handling the world right now; how much worse off would it be if we still "representatives per person" numbers from 1776 and had a Congress of many thousands?
The de facto rules haven't really matched the de jure of the 1776 governance in a long time.
I am trying to keep this as neutral as possible. I have as many opinions as anyone else, but I'm just bringing up the general idea. I think it's probably good to initially just ponder based on one's own understanding of history and match it against your own ideas before you find other people handing you a theory on a platter. There's time enough for that.
> how much worse off would it be if we still "representatives per person" numbers from 1776 and had a Congress of many thousands?
Isn't that actually a major cause of the trouble? You expect Congress to deal with more and more complexities but limit the number of people (i.e. experts) who are members of it, causing them all to be generalists and moreover to have to spend more of their time campaigning rather than debating because the value of each seat is higher and correspondingly so is the effort someone will put in to take it from you and the proportion of your time you have to spend merely defending it.
Meanwhile people feel that their vote doesn't matter because a member of Congress now represents almost a million people and then ordinary people can neither affect the campaign nor get the ear of their own representative.
Suppose it actually had ten thousand members. Then they would be ordinary people. The members who are doctors would understand both medicine and medical bureaucracy. The members who are engineers would understand technology. Instead of them being lawyers whose first job is campaigning.
It doesn't matter if Congress has 5% of them who are actually engineers when 95% of the vote must inevitably come from non-engineers. Not that "engineer" is even enough. Just because I'm an "engineer" doesn't mean I can opine meaningfully on a civil engineering project any more than a civil engineer knows any more about AI than a current Congress-person.
No matter what solution you try to apply to that problem, it's not going to be solved. Try to split the legislative branch into interests so that we don't need the full branch to vote? Massive problems. Try to create a culture where Congress defers to the interest groups who know? Massive problems. A pretty solid case could be made that we've simply scaled past what a legislative approach can reasonably address.
One of the reasons I tried to write my post neutrally is that the whole situation is pretty complicated. Less neutrally, I'm fairly aware of the issues of the technocratic state and its "experts" who really aren't but get given what is basically stolen valor. On the other hand, pointing out problems is easy, trying to propose solutions is much harder. To be honest I just keep coming back to, cultures get the government they deserve. If a culture views governance as primarily about duty and obligation and honor, the structure probably doesn't matter much. If a culture doesn't view it that way, you're going to get corruption and abuse. And unfortunately, while this is a continuum it isn't balanced; to get good government requires a very positive and widespread commitment to those ideals. It doesn't take much deviation at all before you get pretty widespread corruption. It doesn't need a culture that actively values power and what it can bring you, it just takes less than massive, widespread agreement that power is more duty than privilege. If the US ever had that culture, which is debatable but possible, it really doesn't anymore.
> Suppose it actually had ten thousand members. Then they would be ordinary people.
I thought that's how it originally was supposed to be. You were supposed to be represented by a peer, not by a career politician.
And then of course, we have fun gerrymandering, where unelected officials will draw random lines to see how they can eke out more votes for their guy. Redistricting is important to do but I'm not convinced any redistricting committee in the US does it with the people's best interest at heart.
>What advantage is there in giving the unelected bureaucrats the authority to change the rules without approval, except to Congress in dodging accountability for what happens?
Why must congress do more? Most of this stuff would be state issues if not for the absurdity that is current commerce clause interpretation.
Administrative law is the (suboptimal) answer to congressional gridlock, which is the real problem. If Congress is incapable of making new laws, we still need them somehow. Regardless the overturning of Chevron deference makes administrative rules like this more susceptible to challenge. Assuming the telcos have the backbone to do so of course.
Congress passes plenty of laws. 95 so far just since the last election: https://www.congress.gov/public-laws/119th-congress Last congress passed 274. It's really only the controversial stuff that gets gridlocked.
The problem is that our government is now so large and complicated that it's simply no longer possible for Congress to effectively set policy for all of it. (This would be true even if they weren't so polarized.) So instead they just keep delegating more and more power to the executive branch.
The Administrative Procedures Act, Congressional Review Act, and the recent overturning of Chevron are all good checks on executive/agency power here, but I don't think any of them solves the fundamental issue that the executive branch was simply never designed to wield this kind of power. I'm not really sure what the right solution is.
Two-party politics promotes gridlock. Multi-party systems, as long as they don't have veto players, don't have as much stagnation and do a better job of citizen representation.
Do they? 79% of Australians and 73% of Germans have an unfavorable view of Israel, in Germany's case 49% of all being "very" unfavorable [0]. Don't see much representation of that in their politics. Both very much multi-party systems. Australia's system in particular has aspects that are often held up as one of the best in the world. Even on important other topics, it doesn't seem to reflect things much.
Another example, if you survey basically any multi-party European state such as Germany, Belgium, the Netherlands, Denmark and so on purely on economic policies, you'll overwhelmingly find people supporting much more progressive taxation and in general more socialist economic policies. I'm talking large majorities. Including nationalization of many institutions and so on. Yet their governments have done the direct opposite for decades. Not very representative.
The better representation you're talking about is very surface level, for everything that matters the outcome is that favored by big capital.
> If Congress is incapable of making new laws, we still need them somehow.
Do we though? When there is a lack of consensus on what federal law should be, those are exactly the times the federal apparatus should be silent and leave it to the states.
So states can regulate interstate commerce, congressional stock trading, foreign policy, military spending guidelines, federal lands and financial exchanges now?
This is just dodging the question of why can’t Congress do its job.
> So states can regulate interstate commerce, congressional stock trading, foreign policy, military spending guidelines, federal lands and financial exchanges now?
Which of these are the things where gridlock is happening? In which administration did Lockheed go poor because no defense budget was passed in the entire term?
And Congressional stock trading is exactly the sort of thing that should be regulated by the states, since the federal members of Congress have an obvious conflict of interest. Meanwhile if California says it's illegal to trade stocks on insider information then US Senators from California who do insider trading should be in an orange jumpsuit.
The US is a large country with a large economy and a very diverse economy. It is probably not feasible for Congress to deal with the low level details of managing all that.
There is a level of detail that isn't practical to include in law. It's pretty normal for Congress to sketch the general outline of regulation and require the relevant bureaucracy to fill in the details.
Though in this particular case, unless this is based on a change to the law it seems like an overreach by the FCC.
> There is a level of detail that isn't practical to include in law.
Isn't this the argument against unelected rulemaking?
Suppose administrative agencies worked like this: They draft rules and then periodically submit them to Congress who decides whether to enact them. For uncontroversial changes this is essentially a rubber stamp, Congress defers to the experts' recommendations and passes the proposed rules. But now if the administrative agency tries to make a major policy change, it can't go through without Congressional approval, and Congress is fully within their authority to reject or amend the proposal.
What advantage is there in giving the unelected bureaucrats the authority to change the rules without approval, except to Congress in dodging accountability for what happens?
Realistically, in this case, you're moving decision-making from unelected bureaucrats to unelected Congressional staff. It's an invitation for corruption without really improving the process.
Congresspeople (or local legislators) do not have the expertise to evaluate the rules. Or even bandwidth. For example, the NEC is around 800 pages and is extremely technical.
That's why these minutiae are delegated to agencies. But Congress can step in at _any_ point and override the decisions of individual agencies. The rulemaking process is also _extremely_ slow on purpose, giving Congress plenty of time to act.
Congress can establish advisory bodies within the legislative branch [1] to grow and maintain technical expertise on a variety of matters. Splitting the current regulatory agencies into enforcement agencies under the executive and advisory bodies under Congress, together with expanding the number of seats in the House [2], would do a lot to improve the balance of power among the branches.
[2] Laws have to go through a committee process before going to the floor; with more bodies, the committees could handle more work. Expanding the House would also make each seat less of a prize, reducing (but not eliminating) the impulse to gerrymander. Such an expansion would probably need to be accompanied by a serious conversation with the Capitol architect.
Hold up: Parent-poster is obviously talking about federal regulations, not federal laws, and there are important differences between them... so why have you altered the quote to say [Laws]?
That's false. You've put your own words into their mouth to create a "sounds like China" strawman.
The regulations are [often] binding as law. When they change the regulations they are changing the law, under the fiction they're merely changing the interpretation of the law.
An example that comes to mind is the prosecution of Tate Adamiak. One of his machine gun charges was for having an improperly demilled machine gun parts. The parts were demilled under pre-2001 import standards, and the parts were imported pre-2001, and legally imported and sold through a licensed FFL on gun broker. Magically at some point the rule changed and the letter of law never did, and magically the parts weren't parts but actually a machine gun... this bound as law. I think he'll be released in about 15 years.
> they're not "laws" just "rules" that the government will come after you if you break
If you break a rule you get fined. If you break a law you can go to jail. (Congress can delegate regulation around crimes to an agency, but the crime generally has to be substantially described by statute.)
I'd like to see someone explain why a .50 BMG bolt action upper receiver (AR-15 type) is a firearm but a .556 bolt action upper receiver (AR-15 type) is not. It's literally the same damn thing but with a different sized cartridge. Nothing in the statute would allow this, yet executive 'delegation' mumbo-jumbo and magically one is basically unregulated and the other is felonies out the ass if you start commercially selling them without a host of licensing and checks.
The truth is the rulemaking and delegation stuff has strayed so far from the legal fiction as to be almost completely unrecognizable from the thin veil authorizing it.
>If you break a rule you get fined. If you break a law you can go to jail
That's a distinction without a difference when talking about the kinds of ruinous fines government agencies levy and how equivalently ruinous lawyering up to fight them is.
Most people receiving these fines happily spend a month in prison for six figures because six figures is years of discretionary income to most people.
The intellectual-academic class are having an existential crisis that they've lost the reigns of the unelected bureaucratic apparatus and it is now being wielded against them. They are still confused at how to respond to this as they're certain they couldn't have been wrong about deferring (uh, 'delegate regulatory authority') the power vested in congress and elected representation to themselves. Surprise pikachu when it turns out the "apolitical, public goal oriented specialists' were useful idiots in the process of handing power from congress to the executive.
If you thought the political apparatus was willingly going to leave the reigns to "apolitical specialists" rather than ruthlessly consolidating it toward the hands of the most power hungry self-dealing monsters that can command the executive branch then obviously you have not been living in in reality. Of course by the time the blindfold has been removed, the power is already largely consolidated.
There's a whole big conversation to have about the bureaucratic state.
One of the things that appeals to voters is the argument that too many decisions are made by unaccountable bureaucrats. Trump has been as effective at fixing this as with "drain the damp," and our elected officials clearly haven't been great about writing policy either. But one of the grievances that gets people to vote is "look at all this shit that some guy in Washington just decided."