The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and 'advisory opinions', as well as re-interpreting existing rules in very creative ways. What is really needed is greater fidelity to the structural protections by the constitution (such as the Bill of Rights and non-delegation), but I have lost almost all hope of that coming to pass.

The people who are writing these laws by another name (guidance letters, recommendations, etc) are nameless, faceless people who no one will ever know. And unless it's an official "memorandum of understanding" or similar, we won't even know their names.

The people we see and hear in the news are just the distraction so we miss the real show.

Unrepresented -> Corruption -> Money -> Corporate Influence -> Gerrymandering / First Past the Post / Term Limits -> Whole election system is fucked

The way the US, and most other governments, are organized is broken because of a lack of humanity. If you try having one person represent millions, those millions will always be numbers to anyone, and that person will just be a name on a ballot to the numbers. Real representation requires a personal relationship, and that means you need to build government on the foundation of your community first. I generally see every position added to the ballot as a failure of a republic, because what you really should be doing is electing, say, a regional council (using STV or other proportional voting systems) whom then both nominates higher offices and appoints everything you would normally have on the ballot. Because that is their job, and you would not be picking between the lesser of two evils on a ticket but one of a few hundred of your neighbors who is exemplary who would do the best job.

Most people I know, at least in less dense neighborhoods (and community interaction in cities and dense living always has been problematic) can name someone who lives around them they would want to represent them in government. And you are much more likely to have reason to trust, and hold responsible, your neighbor than some guy who lives in the richest part of the city, state, or country and whom you will never meet in person, and they will never know you to give a damn about your liberty.

Just think about the general issues of a HOA gone bad and how hard it can be to deal with it without great personal cost. That is the problem of micro government in a nutshell.

Scalable government is a hard problem in general.

You would need a way to make local law not geopgraphically local but ideologically local. I would love to hear ideas on how you could ever manage that, but my proposition sacrifices some of the humanity potential (if you are voting STV for a local council in a town of 3,000, and have 10 members, in theory each member represents 300 people but nobody will personally know all 3,000 and thus is limited in candidate to whomever they do know, or worse, someone they take at face value like they do today). You lose quite a bit of democracy there, in that some people probably will not have a candidate they like - there are certainly more than 10 distinct political viewpoints in 3,000 people.

But I'd also think such systems would promote people to live with the like minded. If you disagree strongly with your neighbors... you are probably in a bad neighborhood for your own good and happiness. Surrounding yourself with enemies in your daily life provides a fulfilling life to few. But that goes down a deeper rabbit hole of people not considering nuance in where they life - they place work and profit ahead of all else, and will prefer a trash bin in the Bay Area over less lucrative ventures elsewhere they can have a more fulfilling life in general.

While we're at it, could we make this hypothetical government's legislature use a fractional (or maybe one-citizen-one-vote) tally, with representatives acting as proxies that individuals could override for specific votes?

As we see here: https://en.wikipedia.org/wiki/United_States_congressional_ap...

It is constitutionally provided for to have ~30k citizens per critter. But congress is left to determine how many critters there should be. Providing more critters, and thus less people per critter would reduce the amount of power they wield individually, thus there are absolutely perverse incentives at work to keep our congressional representation as citizens to a minimum.

Yes, Chikasu's broad-stroke laws can only work if they are part of a cultural shift away from seing micromanagement as the government's job.

The agencies are what they are from the mentality that everything in our society must be "run" perhaps by a "czar". People call this regulation, but in order to run things, the authorities need not laws and predictable rules, but arbitrary (if scope-limited) powers.

I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ultimately rests on the same western civilization ideas that already come from the Roman Empire and before. Surely your constitution or other fundamental laws should already cover this, or am I wrong?

1) The federal government is one of enumerated powers, but it has plenary authority over areas it is allowed to regulate. The Constitution gave the federal government the power to tax, spend, and "regulate interstate commerce." In a world where interstate commerce is pervasive, giving the federal government those powers allows it to do almost pretty much everything. But those are the words on the page! Just because the result might have surprised framers who were thinking about independent agrarian farmers for whom an interstate transaction might be the rare exception does not mean you can ignore what the words on the page mean.

2) As to agencies, the Constitution creates an executive, and contemplates the existence of executive deparments. The first agency, the customs service, was created by the first Congress in 1789!

3) The Constitution prohibits only "unreasonable" searches and seizures. That implies the power to search and seize. And the idea that warrentless searches are presumptively unreasonable is as much a judicial-created gloss on the Constitution as the idea of exceptions to the warrant requirement. Remember: the very first Congress created a scheme of warrantless searches by the Customs Service.

4) The non-delegation principle is itself a judicially-created concept. It's not in the Constitution.

5) The 10th amendment never meant anything. It literally says "any power not granted to the federal government is reserved to the states or to the people." It doesn't provide any basis for deciding what those powers are. Take something like Obamacare. If that's a legitimate exercise of of the taxing or commerce power, it by definition cannot violate the 10th amendment because it's an exercise of an enumerated power. And if it wasn't a valid exercise of those powers, it's void for not being a valid exercise of an enumerated power. The 10th amendment can never be the reason a law is invalid.

2) Customs was a power given to the federal government, as it was the primary method of taxation, and regulation of international commerce.

3) The ratifiers of the Constitution were most concerned with preventing general warrants, as had been commonly issued by the British as a tool of invasive monitoring and oppression, and the Fourth Amendment was included to prevent these practices. The warrant-less searches we see today are operating in a manner similar to the general warrants, but without even an explicit general warrant.

4) The Constitution has no provision allowing for Congress to delegate any criminal, civil, or regulatory law or rule-making, thus such delegation is un-enumerated and impermissible. The president only has the authority to "take Care that the Laws be faithfully executed", and not even to exercise discretion in an arbitrary fashion.

5) The Tenth Amendment is simply an explicit statement that all powers not explicitly mentioned in Article I, Section 8 are out-of-bounds for the federal government.

2) Nothing in the Constitution gives the federal government power over "customs." It gives Congress the power to "collect duties." Clearly, Congress interpreted that in 1789 to mean it could create an agency to administer the collection of duties. But that same reasoning applies to any other agency, when the subject of that agency's duties involves an enumerated power.

3) General warrants gave authorities the right to go into peoples' houses and search them for contraband with no probable cause. Warrantless searches we see today do not allow the government to do that. Also: the Constitution doesn't say anything about general warrants. It just prohibits "unreasonable searches." What is there in the text of the Constitution to say that an warrantless exigent circumstances search or a border search is "unreasonable?" Besides your own opinion?

4) The Constitution "vests" legislative powers in Congress. The non-delegation doctrine interprets "vests" to require Congress to exercise those powers itself, but nothing about the words requires that construction. E.g. Article I gives Congress the power to "collect taxes." Obviously Congress can delegate that authority--the Constitution clearly does not contemplate Congress itself going out and collecting taxes.

5) No, the 10th amendment says "the powers not delegated to the United States by the Constitution" are out of bounds for the federal government. But the 10th amendment isn't what makes that true--it's inherent in the design of the Constitution. So any 10th amendment issue is really a fight about what was "delegated to the United States by the Constitution."

2) I agree that Congress created the Customs Service to carry out an enumerated power according to laws passed by Congress, and would say that the Navy, Internal Revenue Service, and Treasury were created in a manner compliant with the constitution (and its amendments). Health and Human Services, Housing and Urban Development, and the Department of Education are not compliant with the Constitution.

3) I agree that searches of foreigners at the border are not even required to be reasonable, and searches of citizens must only be reasonable. Reading people's correspondence without a warrant was never considered 'reasonable', and I have no evidence that 'metadata' was considered less important than the contents of the correspondence. There is also no provision for 'collecting and storing information about citizens, but not looking at it unless you really want to'.

4) According to my reading of the Constitution, Congress must establish the laws/rules for the collection of revenue, and fund/authorize the relevant agency. After Congress does this, it is the President's job to "take care that the laws be faithfully executed", which I interpret as meaning that they should hire and supervise people to do the job Congress told them to do.

5) I sympathize with your view, but the entire Bill of Rights was meant to be a dead-letter by that definition. I am sure you aware that some founders made the case that the Bill of Rights was entirely superfluous, as the federal government had never been given the power to regulate speech or firearms, search citizens arbitrarily and invasively, force them to confess to crimes, or forcibly station soldiers in their homes. Unfortunately, the Bill of Rights has proven to be vital (if insufficient) to the preservation of liberty.

Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.

Yes, I agree that the states were not delegated all powers not expressly delegated by the constitution, but "the people and the states" were. I have never heard a better explanation for the 10th amendment than to say that it was restating the enumerated powers doctrine (though I cannot recall where I first heard that explanation). If you have a better explanation of the 10th amendment, I am very interested to learn what it is.

Regarding your second point: the change was not "states" vs. "people and the states". The change was whether the rights referred to were solely those expressed in the Constitution, or something broader. Broader won. This is an argument you are going to need to take up with the authors of the Constitution, because they do not agree with you.

On the one side you have the "But the Framers didn't have machine-guns, or CRISPR." On the other side you have people who would ask "So I don't actually have a right to use strong encryption? I don't have a right to build a rocket? I don't have any rights that were not imagined by the Framers? All new inventions have to be allowed before they can be used?"

Otherwise anything could be "necessary and proper."

So, let's have a hypothetical about something really fundamental: If I could CRISPRize negligible senescence, or superintelligence, do I have the right to do it?

Do you have the right to use strong encryption? If you can fit it into a right the framers would have recognized based on English law and tradition (probably free speech), then yes. If not, then no. The 10th amendment has nothing to say about that.

Fundamentally, the Constitution is not really about "rights." The Bill of Rights was added to appease those who were worried the central government would impinge on the traditional rights of Englishmen. But the real purpose of the exercise was to create a powerful, but democratic, central government that had the authority to do the things that needed to be done.

To be precise, the 10th amendment is a nullity if you already accept that the federal government is one of enumerated powers. At the time of the founding, that was a novel concept and it probably made some people feel better to have it stated explicitly. But today that's taken as a given. The debate is never over if the government has powers not enumerated, but whether a particular action falls within the scope of an enumerated power. And the 10th amendment tells you nothing about the scope of the enumerated powers.

If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?

I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.

To me this is one of those statements that might sound superficially wise, but hides something very dark. Yes, if you take the analogy literally, it seems foolish to build on crumbling foundations. But that sort of literalism might be silly here.

What do you mean by "crumbling"? The entire project of a democratic republic lies on the collective respect for a set of rules that provide the scaffolding for all power to be granted by the people, according to the will of the people, to do what the people think is best for them. Right? That's the whole idea of government in the American sense, correct?

Now if the political class starts to ignore some of the ground rules (which is equivalent to taking power for itself), and nobody prevents this, can we claim that the democratic republic maintained its integrity? Or was democracy itself eroded? And if the answer to this last question is yes, how can one defend that the moral choice is to just accept it? Shouldn't we obviously demand strict observance of the ground rules, so that the legitimacy of those who exercise power in our name is unquestionable, before anything else? And then try to change the ground rules if the majority feels that they no longer serve us? And then strictly observe the new rules so that legitimacy is not compromised, and so on? Or am I just crazy?

Obviously a country is not a house, and countries have been very successful with only a single constitution (America) and with many (France). But generally changing constitutions frequently does not make for a politically stable state, and much in terms of quality of life rests on political stability.

We don't need a law for that, because non-public directives already don't have the force of law. Agencies already go through an extraordinarily involved process any time they make binding legal obligations. They are not only published, but usually the subject of notice and comment procedures and are subject to extensive judicial review.

Those processes don't apply to what the article is talking about, because the article calls "law" what is actually legal advice to the government about what is legal or not under existing laws. Like any organization, the government has counsel. The government asks that counsel "can we do this?" The answers to those questions are not law, they're legal advice.

Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of classified reports by reference, bestowing on them the status of law."

https://www.brennancenter.org/sites/default/files/publicatio...

I think we need a law to ensure that all such documents are published in a timely manner.

Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA.

Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.

> Now, you can say it would be great if these things were all public. I happen to agree.

In any case, we're agreed on the main point of the article and the point of my original comment.

Do you think that given the potential impact on such issues as torture, extrajudicial killings, and mass surveillance, this growing body of "secret law" should see the light of day? This is the key question.

Are the General Orders of the Chicago Police Department --- the giant binder of rules the CPD sets for the conduct of its employees --- law under this definition?

If an elected official cites an OLC opinion as justification for torture in front of a judge and has a fighting chance of being vindicated, then I consider that OLC opinion to have the "force of the law" irrespective of any conventional technical definition.

In any case, the argument over semantics is uninteresting.

The key question posed by the report and upon which my original comment hinges is whether or not the directives, opinions, judgements, and bills informally described as "secret law" should be made transparent.

I think they should. I don't know what you think because you didn't respond to the question.

Government officials probably cannot cite an OLC opinion in court in front of a judge as justification for torture. That's what my first comment on this thread pointed out. OLC opinions do not create binding precedent, any more than Wesley Snipes's tax lawyer's opinions did for his case.