Maggie's Farm

Judicial review is allowed under an agency's enabling statute or under §§ 701-706 of the Administrative Procedure Act.

OneGuy: The Supremes need to rule on this.

The Supreme Court HAS ruled on administrative law, many times, including in Citizens to Preserve Overton Park v. Volpe, which established the legal framework for judicial review under the Administrative Procedure Act.

OneGuy: Only laws passed by both houses and signed by the president can qualify to be laws.

The Administrative Procedure Act IS a law passed by both houses of the Congress and signed by the president. See P.L.79-404 60 Stat. 237. More directly, administrative law is an essential part of modern government. For instance, Congress might (and has) passed a law which says that people can't dump dangerous chemicals in the water. But what is a dangerous chemical, when hundreds of new chemicals are created every year? Congress could list every dangerous chemical in the law, but that list would be outdated as soon as the law was enacted. Or Congress could (and has) delegated the determination of what constitutes a dangerous chemical to an agency which must base its decision on scientific and policy principles outlined in the law.

An argument for limits on administrative regulation might be defensible, but that would require recognizing the necessity of administrative regulation, and also on how those limits would be constructed to preserve the necessary administrative functions while making the system less onerous and more responsive.

James: Federal courts, including SCOTUS, frequently ignore the text and substitute their personal preferences. Hence we have rulings that slavery was legal.

Huh? The founders explicitly left slavery to the states under the original constitution. It required a bloody war and a constitutional amendment to end slavery. Slavery was morally wrong, but legal under the constitution.

In any case, OneGuy said "The Supremes need to rule on this," but they already have, repeatedly. Maybe he meant to say that the Supreme Court should rule differently.

James: "that would require recognizing the necessity of administrative regulation," A claim you've made to me before. And a clear indication of the poverty of your imagination and you moral and cognitive poverty.

And yet you don't offer solutions you would consider constitutional. Can Congress regulate water pollution, including states that sent their pollution downstream to other states. And how would they do that? Does Congress really have the expertise to specify every pollutant, the political will at all times when necessary, and the nimbleness to react to new pollutants? Or is the Congress unable to regulate water pollution, even between states?

Let's try a simpler example, traffic regulations. Speed limits and stop signs have the force of law. Does the legislature have to pass legislation for every speed sign? where traffic needs to slow? Do they have to pass a law to put a stop sign at Main and Maple? Or a law to determine how long each traffic light should take to cycle? Should there be a passing lane along a certain section of highway? Or can they delegate that authority to a Department of Transportation, who then collect data and experience and expertise to decide?

James: Look at you Zac, being all textualist when you think it serves you.

Huh—again. We were referring to the founders, who had contentious arguments about slavery, but decided that they would leave the issue to the states. The Constitution refers to slavery only tangentially (such as calling them "other Persons" as opposed to "free Persons"), but it is clear that slavery was expected to continue.

James: I consider myself a staunch textualist because I view judicial activism as intellectually dishonest as well as legally, socially, and politically ill-advised.

So, arguing against the courts substituting their personal preferences for the Constitution, you argue the courts should substitute their personal preferences for the Constitution.

James: And legislators would have access to exactly the same "experts."

Interesting use of scare-quotes, as if there are no such things as chemists, biologists, and toxicologists with specialized knowledge in their fields of study. Or should we say "chemists", "biologists" and "toxicologists".

So, let's assume Congress sets up the EPA as an advisory agency. In October, the EPA reports that a new pollutant (a chemical dangerous to human health) is found in the waterways. Congress, still struggling to pass a budget and consumed with investigating Benghazi, finds the time to hold hearings with the experts and then with industry leaders. Dark money changes hands. But the people (you know, environmental wackos who don't want their children to be poisoned) rise up and demand action. The next year or two, Congress passes a law regulating the amount of the pollutant that can be dumped into the waterways. (Because it's rarely possible to eliminate every vestige of chemicals.) So, now the EPA has to somehow regulate the situation, which may involve new companies each adding to the problem. Or some genius figures out that if they mix bleach with the discharge, it changes the chemical very slightly, enough to not be covered by the law, but still a dangerous pollutant.

Some time after the rivers die, a congressional aide has the brilliant idea: Why not outlaw dangerous pollutants and set up an agency to determine what is dangerous.

James: They can pass laws that meet constitution muster and the DOJ can enforce the law as it is written.

That's what Congress did when they set up the EPA and other regulatory agencies. Chevron deference may be scaled back, but the administrative state will in all likelihood still be found constitutional.

James: No reason for the federal government to be involved in traffic laws at all. Problem solved.

The argument raised against administrative regulation was universal. Traffic laws were introduced as a simple example of how government uses agencies to set regulations and why legislatures are not suited for making those decisions.