USSC decisions

"rule-making" is just laws that aren't voted on, they are an unconstitutional, undemocratic end-run around the legislative process

Article 1 does not permit Congress to cede its lawmaking powers to an unelected executive agency

It is long overdue for SCOTUS to take up these cases

My favorite reasoning is "The EPA has to do this because Congress won't". A Caesarian view if their ever was one.

 

Kind of like when a President (any President) signs an executive order?

 

depends on the order

sometimes they are putting an end to some prior executive overreach

 

You just wait until he finds a random Twitter that points out the 5 of the last 300 that did just that!

 

Congress created the EPA to carry out environmental protection laws such as the Clean Air act. The law requires the EPA to set standards.

 

a law ceding the authority to make laws ("rules", "standards", "guidance") to an executive agency is unconstitutional

if you want to impose emission standards on the nation, vote on it

 

You are saying basic functional operations are unconstitutional.

The DoD has rules and standards. Rules of engagements. Recently updated cyber security standards. Businesses that work with any fed gov agencies must meet certain baseline security standards. These are all unconstitutional in your viewpoint. Of course, this is just some examples.

This argument that delegation is unconstitutional is bogus but of course, we got these extreme originalists on the Court now that believe in them. So, you might get what you want. If you do, you might not like what you see. What we call dysfunction today is cake walk compared to what will happen. Imagine every single gov agency is on hold waiting for Congress to protect them from China's cyber-attacks.

@B-Bob you might be right about 1550s.

The Nondelegation Doctrine Is a Fable - The Atlantic

 

I was not kidding. I don't think many of them understand the Enlightenment enough to actually envision earlier times, but a lot of their methods and goals point more in a centuries reversal than the decades reversal they may think they want. (shrug)

They're all like: Naw, B-Bob, I've been to the ren faire, and there ain't no GUNS!"

 

A counterpoint to that article.
https://fedsoc.org/commentary/fedsoc-blog/an-empty-attack-on-the-nondelegation-doctrine

A non-extremist view is that (and this is based history too - see Federalist 37...also Federalist papers aren't the end all of Constitutional interpretation, though the Federalist Society would like you to think it is) from the begining on this new government, Congress has always had to use their own discretion to vest how much power to the executive branch. A lot of this happened throughout history, even before the progressive era and the APA, with steamboat commission or the interstate commerce commission, to alleviate courts from agency decision making. If you end up abandoning agency rulemaking, then you end up with courts micromanaging laws because as I stated earlier, Congress doesn't do anything in terms of making or updating substantive law. And even when Congress tries, it's impossible to predict all future outcomes of laws, so Congress must give some latittude for agency interpretation.

So pure non-delegation is just malarkey. That stated, how to balance delegating too much power, or how much indepence from the executive branch is constitutionally allowed in agency structure, and things like chevron deference...those issues can be debated with legitimate points on all sides.

 

You are conflating rules and standards for how the government must act with rules and standards imposed on private citizens. Rules and standards that have the effect of law, but are never voted on.

That is a violation of Article 1 which vests legislative authority solely with Congress.

If you want to know why the federal register is now millions of pages long (vs at the founding when there were only a half dozen federal crimes), the reason is because these unelected agencies can add to it without Congress voting on it.

 

It already did. It's called the Clean Air Act. Congress deferred the implementation of the Clean Air Act standards to the EPA which it implements to this day. The basis of regulating emissions from coal plants is derived from that delegated authority. Furthermore, the Supreme Court ruled in 2006 that the EPA had the authority to regulate greenhouse gas emissions under the Clean Air Act.

This isn't simply about reversing the 2006 case. This is about killing the Chevron Deference principle and destroying the ability of agencies to interpret rules. This court wants to salt the ground and permanently eliminate the ability of agencies to interpret rules and with a Congress that is permanently gridlocked, that means we'll never get regulatory changes again (which I'm sure makes you very happy).

 

The gov has rules and standards imposed on inter-operations, gov entities inside and outside the US, private entities inside and outside the US. So, you are now okay with every rule and standard imposed except those that are directly imposed on private citizens, meaning Congress CAN delegate "law-making" in all forms except when it's imposed on private citizens? I appreciate you being more practical, but this pick and choose when to delegate isn't consistent with your argument that Congress cannot delegate ("violation of Article 1 which vests legislative authority solely with Congress").

 

https://apnews.com/article/abortion...ights-warsaw-b341c34d236d51fdda36c2fc7a8aa88c

https://www.reuters.com/world/europ...-debate-about-abortion-ban-poland-2021-11-05/

 

Chevron Deference gets criticized, but won't get reversed unless there's a better alternative. Principled conservatives know this, and will just whine, but won't change until there's better options for them. Dumbasses want to put the world on its head. But Chevron isn't even that impactful because its deference in close cases, which while impactful, is still a subset.

The basic question is stuff like: if the clean water act says national water should be clean, who then defines national water? Obama had an expansive definition. Trump had a limited definition. Rivers, tributaries, creeks, bayous? Is it up to the president or is it up to the EPA? Usually, the two are on the same page, but what if they're not? Does Congress need to update old laws? If it's none of the above, then is it up to Courts? Courts used to be very active in this arena. Only twice in history (during the New Deal) has SCOTUS ruled against agency rulemaking powers. We'll see if this court does it, but not only that, but also what alternative process is established.