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.
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...
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...
[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...
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.
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.
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.
The SEC still gets to make the rules, they just don't also get to impose penalties on their own, without a jury trial.
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.
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."
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.
"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.
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.
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.
- "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.
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_...
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".
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.
One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.
"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]
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.
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.
[0] https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_Unite...
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.