I'm talking about SCOTUS. Can you give examples there? Trial (district) and circuit appealate courts are different - though they also have been politicized to degrees.
Regulation is handled in the executive branch. Just because we regulate it, or it's tried in court, doesn't mean it's done well. That's the issue.
Unfortunately (and that is another Area where the Supreme Court should start striking regulations down) the legislative branch often passes open ended ambiguous laws directing an agency to accomplish a open ended ambiguous "goal" or "directive" instead of passing actual specific laws. These are then "interpreted" by the agency into regulations. Which is why for example the ATF (excuse me BATFE today) can just redefine what is a "machine gun" under every administration making entire classes of products illegal or not on the whim of who ever runs that agency (or is president).
This should be plainly unconstitutional as the legislative branch is not empowered by the constitution to delegate its power to the executive. legislative branch makes the laws and executive enforces the law. However in the US Today, the executive is both making and enforcing the law. That is not how it should be nor is it tenable for a free society to function
The DEA is another organization that is infamous for doing this. Or rather infamous for being handed such broad decision making authority. Like ATF though, it’s by design - it allows politicians to continue to make unpopular decisions without having to be held accountable for it.
> This should be plainly unconstitutional as the legislative branch is not empowered by the constitution to delegate its power to the executive
this is a fringe theory not agreed to by serious people, and used in a bad faith way by people who want to just dismantle the administrative state. The only logical conclusion from that thought process is no regulatory body can exist.
Though the "big tent" about regulations being mishandled by SCOTUS is that SCOTUS will often just throw out plain text interpretation of statutes and regulations when it doesn't satisfy the majority's overall goals.
>>and used in a bad faith way by people who want to just dismantle the administrative stat
It not in bad faith. I absolutely / 100% have the desire to dismantle the administrative state, it should not exists at all.
Anyone that claims to support "democracy" should also want to dismantle the administrative state as there is nothing less democratic than a bunch of unelected bureaucrats with the power to rewrite laws, and ruin peoples lives / businesses
Basically every action taken by the executive, if only through the realities of selective enforcement, leads to decisions being made by "unelected bureaucrats". Unless we start voting for every cop, prosecutor, auditor, city planning official, the domain experts they bring on, etc.
If you agree that delegation at some level makes sense, then we're talking about degrees of delegation being considered reasonable. But outright ruling out any form of executive delegation seems kind of hard? Your argument would apply to every level of the state after all, including your city council.
>>Your argument would apply to every level of the state after all, including your city council.
That would depend on the State Constitution, and the powers it gives state governments, and the power those state governments then give the cities they authorized under their state laws
That is the beauty federalism, what applies to the Federal Government does not have to Apply to State Governments.
Yes I think SCOTUS is acting in bad faith. I do not believe this to be a radical point of view in this day and age. There is some navel gazing about how SCOTUS is the final say here so what they say "is right", in some sense, of course.
It isn't delegating its power, it's leaving the implementation to the executive branch because it doesn't know how to implement its goals.
If the legislative branch was able to do this on its own, it would, but that would be a massive amount of work that they don't want and would do poorly if they tried.
No. In most areas the legislative branch has delegated their authority to the executive branch, and appointed bureaucrats write the regulations. This is a problem due to lack of accountability. I hope that the Supreme Court will eventually eviscerate the authority of the executive branch to write regulations. If something needs to be regulated then Congress ought to pass a specific law about it, not pass the buck.
How could Congress possibly keep up with all the issues affecting the country? Congress is a serial machine - it can pass < 1 bill at a time. Executive branch agencies are parallel machines.
There is no need for Congress to keep up with all the issues affecting the country. They should only legislate on issues where they have legitimate Constitutional authority without stretching the intended meaning of the commerce clause. Everything else can be left to the several states, or simply not regulated at all.
In particular I hope the Supreme Court will eventually reverse the precedents established in Gonzales v. Raich (2005), United States v. Darby (1941), and United States v. South-Eastern Underwriters (1944). That would essentially destroy much of the federal government as we know it today, and good riddance.
There are orders of magnitude too many decisions and too much analysis for Congress, whose bandwidth is < 1 bill simultaneously. If you think regulators move slowly now ...
Congress delegates it to technical experts, who are appointed by an elected official (the President). Congress can always change the law if they are unhappy; they have the ulimate power.
Those departments are largely executive agencies. The executive branch is supposed to enforce but over time it began to do both. The court is pulling this back now.
Regulation is handled in the executive branch. Just because we regulate it, or it's tried in court, doesn't mean it's done well. That's the issue.