Under the OG Constitution, the House was the only branch of government directly elected by the people, and therefore most accountable to them. The terms were short (biannual) so that legislators would regularly be held accountable and easy to replace. A lot of the other machinery of government was put in place as a check on all this democracy, so that momentary passions and demagoguery couldn't bring down the government through a kind of mob rule.
The founders further recognized the special democratic legitimacy of the House by giving it the sole power to impeach and to propose legislation that spent money.
You can fairly characterize the framers' attitude as "the democracy is coming from inside the House", both for good and ill. The strong presidency we know is more a function of precedent (set by Washington, Adams and especially Jackson) than an explicit feature of the Constitution. Whether Congress or the executive would have primacy was an open question for the first few decades of the country's history.
That's a great point about the original House and Senate; I agree. I don't know that it makes the president less democratic than the House. I suppose presidents weren't directly elected either, via the electoral college, etc.
Everything else aside, and this is kind of unrelated to the points 'idlewords is making, but: in modern political theory the big problem with the executive doing this stuff vs. the executive branch is that the regulatory process in the executive branch is driven almost entirely by a combination of unelected appointees and unelected career staffers, usually guided by a bureaucratic public comment hearing process that provides just a faint approximation of representation.
That's why you'd want Congress to do this and not the FCC, because Congress is directly representative, and decisions inside the FCC are overwhelmingly made by people nobody elected; the best you can say is that some of the highest-ranking of those people are traceable to appointments by an elected official.
The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem, rather than have the FCC pretend it can step in for Congress when Congress isn't moving fast enough.
Again (and again), that ignores the fundamental fact of governing a country of 340 million with only 540 elected officials. Whether they are elected to the legislature or the executive, the only solution is delegating the vast majority of decisions and actions.
I have no objection at all to Congress delegating to the FCC the power to enact sweeping Internet regulations. The issue is that they have not yet done that.
Sure. It seems pretty clear to me that they have not; the Supreme Court said so back in 2005 (but Chevron Deference mooted it), and the Appeals Court just said so last week (now that Chevron Deference is dead).
The courts could possibly be carrying out an anti-regulatory political agenda. I do mean "possibly"; not everything they do is politically driven and sometimes the politically-driven decisions coincidentally align with reasonable outcomes.
Plenty of serious people thought the FCC actions and Chevron Deference were legally fine. Plenty did not. (My unstudied observation of the latter is that it was the same people who always oppose all regulation in every way possible, but I'm not really sure of that.)
If someone just takes one side's argument, doesn't mention the other side, and says that makes it clear, doesn't that tell us only the political preferences of speaker and their desire to push them?
I haven't read enough on it to know. I could believe the FCC overstepped their authority. It is interesting that SCOTUS gives the president the effective authority to break laws, but not regulate rich people. Perhaps the president should just break this law?
No. At any rate, if you're hanging your hat on a return of something like Chevron Deference, it's not going to happen. The FCC's authority to regulate the Internet was a controversial reach even before the courts decided they didn't have to take the word of regulators for them. For my part, as part of the opposition of the incoming administration, I'm just fine with the idea that their appointees --- some of whom will have terms extending past this administration --- have only the specific authority delegated to them by Congress, which my side will hopefully retake in just a couple years.
I think we can probably wrap this up here. We don't need to convince each other of anything.
The point isn't to convince each other. Have a good weekend!
> ... I'm just fine with the idea that their appointees --- some of whom will have terms extending past this administration --- have only the specific authority delegated to them by Congress, which my side will hopefully retake in just a couple years.
Yes, it's amazing that people overlook the goose and gander principle. The Senate filibuster is a bigger example - the Dems talked about eliminating it in the middle of an election where they were likely to lose the Senate.
> The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem
That's the Assume a Can Opener problem, given that we're locked into dysfunction with things like partisan gerrymandering, primary voting dominated by party extremes, and our first-past-the-post winner-take-all system — to say nothing of First-Amendment idolatry, as manifested in Citizens United, that has resulted in Second Gilded Age oligarchs being able to dominate the discourse among low-information voters.
Local politics have colored a lot of my views on these things, to where I'm deeply suspicious of faux-democratic processes like the notice-and-rulemaking regulatory process of the federal government. Nobody elected the people making these decisions! These are awfully big decisions for unelected appointees to be making.
> Nobody elected the people making these decisions! These are awfully big decisions for unelected appointees to be making.
Agency costs [0] are everywhere, so it's a question of the lesser of two (or more) evils: For most issues, if the legislature has even arguably delegated authority to unelected appointees (even, or even especially, to "politicals"), then I'd usually rather have those appointees making the decisions, subject to being overruled if they go too far. [1]
Otherwise, the problems just fester: Too many elected officials are terrified of offending oligarchical special interests with big checkbooks (and/or big megaphones), who are increasingly willing to punish deviance by stirring up extremist zealots in the parties' primary elections and low-information voters [2] in the general election.
[1] Chevron deference was quite workable. The Supreme Court's recent Loper Bright decision strikes me as another brazen, Marbury-style bootstrap by life-tenured judges who ought to think of themselves as humble hired help, but who imagine they should have authority without accountability. The "least-dangerous branch"? Not anymore. A "co-equal branch"? Talk about noses pressed up against the glass; there's a reason the Constitution talks about the federal judiciary in Article III, not Article I (Congress) or Article II (the executive branch).
[2] Low-information voters shouldn't be mocked: Most of us have other things to do in life; we just want issues dealt with competently and "equitably" — I'd prefer a Rawlsian "veil of ignorance" approach [3] for just about everything — with due attention to externalities and resilience. Example: In Texas judicial elections, I'm a low-information voter even though I'm a lawyer: Unless I know about the candidates myself, I generally follow the Houston Chronicle editorial board's recommendations, because I have some confidence in the board's process — and I don't want to spend time "doing my own research."
It's good that we disagree on things! There are broad delegations of power to the regulatory state that I'm OK with; I'm not a Federalist conservative. But my primary political issue these days is housing, and broad regulatory authority is the natural predator of affordable housing developments (environmental review, historical preservation, zoning variance and plan commissions, public hearings, &c), and most legislative progress in legalizing housing takes the form of sharply curtailing the authority of regulators.
In this particular case: I don't really think there's even a fig leaf of the grant the FCC claims they have. We were both there at the time, and I think it's clear from the text of the law and from the attitudes of the time that Congress looked at the Internet, the entire Internet, the same way it looked at CompuServe --- as an information service accessed through telecommunications links. The Internet is too big a deal for an executive agency to simply manufacture its own authority, simply because Congress isn't moving fast enough on it.
(If it helps: I also think Net Neutrality is dumb. I wouldn't stomp my feet and say that a Congressional act authorizing FCC rulemaking to enforce it was illegitimate; it would just be a policy I disagree with. Fortunately for me, Congress hasn't enacted that policy.)
