Kagan’s dissent in EPA case

[Pete F.]

Actually unlike you, we want a functioning government.

Article I, Section 1 of the US Constitution says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” One way to paraphrase that is: Federal law is made by Congress.

In the modern US, this is not quite true. Some federal law is made by Congress, but quite a lot of federal law is made by government departments and administrative agencies. In many cases, Congress passes fairly general laws, and those laws instruct the relevant agency to write rules implementing the laws, and then the agencies write more specific rules. Sometimes these rules just fill in details in a comprehensive statutory scheme. Other times the agencies have pretty broad mandates to write rules that are in the public interest, and they get to set their own agendas and decide what that means.
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[Jim in CT]

Originally Posted by Pete F.

Actually unlike you, we want a functioning government.

Article I, Section 1 of the US Constitution says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” One way to paraphrase that is: Federal law is made by Congress.

In the modern US, this is not quite true. Some federal law is made by Congress, but quite a lot of federal law is made by government departments and administrative agencies. In many cases, Congress passes fairly general laws, and those laws instruct the relevant agency to write rules implementing the laws, and then the agencies write more specific rules. Sometimes these rules just fill in details in a comprehensive statutory scheme. Other times the agencies have pretty broad mandates to write rules that are in the public interest, and they get to set their own agendas and decide what that means.
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you’re right, in modern US, it’s not true, because both parties have moved us away from what the constitution says, and given ( in the opinion of many) WAY too much power to unelected agency officials.

if we want to give that much power to unelected agencies, amend the constitution. today’s conservatives want to play by the rules

This is precisely what trump promised to do if elected. He won the election, and the people gave him control of the senate.

Elections have consequences.

It’s very dangerous to ignore parts of the constitution we don’t happen to like. If we want to impose serious restrictions on an entire massive industry that impacts all of us, there’s no way that should come from unelected agencies. The EPA has experts who can make suggestions, and they can help enforce the policies, but the policies have to come from elected people in congress, so that we have a say in shaping the policy.

Let’s say Desantis wins in 2024, and let’s say he has a republican congress to work with, and the gop has a razor thin majority, too small to get anything extreme past the filibuster. In that scenario, are you comfortable with the GOP skirting the constitution and having unelected agencies setting right-wing policy?

You’d go berserk, and you’d be right to go berserk.
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