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All of the new "rules" being proposed by executive agencies will be subject to court challenge, and some of them (like the FTC's non-compete "rule") will likely

by cal5k 2y ago

All of the new "rules" being proposed by executive agencies will be subject to court challenge, and some of them (like the FTC's non-compete "rule") will likely be subject to a preliminary injunction. The goal is to get people to think "Yeah! Taking action on non-competes is great! Darn politicized courts!", when in reality this is not something an executive agency should be doing without an act of congress, or it may not even be a matter that falls to the federal government at all. Most employment law, for example, falls to the state in which the worker lives, and some have chosen to ban non-competes via legislation. This is much more democratic than attempting to craft law by executive fiat, even though I tend to agree that non-competes are more harmful than good in many situations.

thfuran 2y ago
>This is much more democratic than attempting to craft law by executive fiat What exactly "more democratic" means is a bit unclear to me. Is an act of Congress more democratic than agency policy because more reps voted on it? Is it more democratic because the reps who voted on it were elected rather than appointed by people who were elected like over at those agencies? Or is a policy democratic based on its alignment with the will of the electorate regardless of provenance?
- cal5k 2y ago
  > Is it more democratic because the reps who voted on it were elected rather than appointed by people who were elected like over at those agencies? The presidency is not an elected autocracy. The extent of his powers are strictly limited to those granted by a) the constitution, and b) acts of congress. Attempts to circumvent these limitations through clever legal theories are undemocratic, doubly so when that circumvention bypasses duly elected state governments. No act of congress has ever explicitly banned non-compete agreements or authorized the FTC to do so, and the plethora of employment law at the state level strongly supports the notion that it wasn't even a federal matter to begin with. Would you argue that it's more democratic or less democratic when powers previously belonging to states are subsumed by the executive in this way? What if the people of Texas believe non-compete agreements are important? Why not just federalize all laws and tell state legislatures to pound sand?
  - deleted 2y ago
    [deleted]
- sophacles 2y ago
  Also: Is it less democratic because unlike laws, there's an open comment period for the public to make their voice heard? (unlike laws or executive orders) Is it less democratic because it's policy being implemented by people who spend a lot of time thinking about the policy and its effects, rather than by some blowhard trying to score culture war points on twitter than making a policy?
  - cal5k 2y ago
    I'm confused by your questions. Are you suggesting that ignoring the structure of government carefully laid out in the constitution and agreed upon by every state in the union is more democratic because you like the outcome? This is happening in an election year, so the office of the presidency is driving this for political reasons. I sincerely doubt you'd be comfortable having someone you disagree with politically wield the same powers in the same way.
    - sophacles 2y ago
      I was building on what the comment i replied to said. The concept of "more democratic" is kind of strange. So i comment on things that have elements of democracy. My first question merely pointed out that the process that exists, with a public comment period etc, is in some ways more democratic than congress passing laws. That is - this is a place where the rulemaking is more inclusive of the public than some having some trash that got themselves elected passing laws on behalf of people they don't actually talk to or consult about those laws. The second is actually a statement about how it's shockingly responsble for the selfish idiots that get themselves into congress to have somewhat knowledgable, focused people do the work instead of just randomly passing laws based on their twitter feed. The end of the process initated by executive order in 2021 is happening this year, yes. I've seen people I like and dislike wield that power. Witha ll of them I've agreed with some of the policies they had and disagreed with others. I'm comfortable with it happening generally, but i wish congress would be a little more involved and representative of the people when they set up those powers and issue the directional laws that these people administer. That is not an issue with methodology though, just political opinion about the specific policies.
lenerdenator 2y ago
People with this viewpoint seem to forget that Congress often granted these agencies these powers, or at least, were vague enough in their definition to allow it to plausibly happen. It's also worth noting that many of the people who demand that Congress do these things instead of bureaucrats are saying that in bad faith; that is, they don't want it done at all and know Congress can't possibly come to an agreement on it because they're the same people funding the campaigns of representatives who go out of their way to sink the legislative process.
- cal5k 2y ago
  The supreme court has been very clear that congress can't delegate lawmaking to executive agencies. So no, I haven't forgotten that at all. As for it being a feature, you're right - I think the vast majority of legislating should be done at the state and local level. This isn't a secret, it was covered in the Federalist Papers in the 18th century. What's your argument in favor of federalizing all aspects of law in a large and heterogenous country? Why does the federal government need to force Texas to ban non-competes when Texas has decided not to do so but California has? What if the next government decides to force California to un-ban non-competes with a new rule issued by Executive Order? Do you not see why this is an unworkable and brittle approach?
  - lenerdenator 2y ago
    > The supreme court has been very clear that congress can't delegate lawmaking to executive agencies. So no, I haven't forgotten that at all. Well, they do it all the time. FCC, OSHA, EPA... Try taking the approach that you shouldn't have your FCC license (amateur radio, broadcasting, whatever) to the courts because these bureaucrats made up the whole thing. You won't get very far. > What's your argument in favor of federalizing all aspects of law in a large and heterogenous country? My argument is that no one actually believes in not federalizing things. Not unless it fits their agenda. See the Comstock Act, for example. > Why does the federal government need to force Texas to ban non-competes when Texas has decided not to do so but California has? They need to ban non-competes because they're horrifically abusive of workers and like most things, the corporate class keeps pushing until someone pushes back. Would you like that "someone" to be the FTC through a legal process, or an angry mob tearing people apart? Mobs don't particularly care much about "states' rights" or the writings of a bunch of slave owners who lived before the creation of germ theory, after all. > What if the next government decides to force California to un-ban non-competes with a new rule issued by Executive Order? Do you not see why this is an unworkable and brittle approach? What if the next Congress decides the opposite of the current one? What if a future SCOTUS bench decides to contradict a past ruling? What's your point?

by cal5k 2y ago

thfuran 2y ago

>This is much more democratic than attempting to craft law by executive fiat What exactly "more democratic" means is a bit unclear to me. Is an act of Congress more democratic than agency policy because more reps voted on it? Is it more democratic because the reps who voted on it were elected rather than appointed by people who were elected like over at those agencies? Or is a policy democratic based on its alignment with the will of the electorate regardless of provenance?

cal5k 2y ago
> Is it more democratic because the reps who voted on it were elected rather than appointed by people who were elected like over at those agencies? The presidency is not an elected autocracy. The extent of his powers are strictly limited to those granted by a) the constitution, and b) acts of congress. Attempts to circumvent these limitations through clever legal theories are undemocratic, doubly so when that circumvention bypasses duly elected state governments. No act of congress has ever explicitly banned non-compete agreements or authorized the FTC to do so, and the plethora of employment law at the state level strongly supports the notion that it wasn't even a federal matter to begin with. Would you argue that it's more democratic or less democratic when powers previously belonging to states are subsumed by the executive in this way? What if the people of Texas believe non-compete agreements are important? Why not just federalize all laws and tell state legislatures to pound sand?
- deleted 2y ago
  [deleted]
sophacles 2y ago
Also: Is it less democratic because unlike laws, there's an open comment period for the public to make their voice heard? (unlike laws or executive orders) Is it less democratic because it's policy being implemented by people who spend a lot of time thinking about the policy and its effects, rather than by some blowhard trying to score culture war points on twitter than making a policy?
- cal5k 2y ago
  I'm confused by your questions. Are you suggesting that ignoring the structure of government carefully laid out in the constitution and agreed upon by every state in the union is more democratic because you like the outcome? This is happening in an election year, so the office of the presidency is driving this for political reasons. I sincerely doubt you'd be comfortable having someone you disagree with politically wield the same powers in the same way.
  - sophacles 2y ago
    I was building on what the comment i replied to said. The concept of "more democratic" is kind of strange. So i comment on things that have elements of democracy. My first question merely pointed out that the process that exists, with a public comment period etc, is in some ways more democratic than congress passing laws. That is - this is a place where the rulemaking is more inclusive of the public than some having some trash that got themselves elected passing laws on behalf of people they don't actually talk to or consult about those laws. The second is actually a statement about how it's shockingly responsble for the selfish idiots that get themselves into congress to have somewhat knowledgable, focused people do the work instead of just randomly passing laws based on their twitter feed. The end of the process initated by executive order in 2021 is happening this year, yes. I've seen people I like and dislike wield that power. Witha ll of them I've agreed with some of the policies they had and disagreed with others. I'm comfortable with it happening generally, but i wish congress would be a little more involved and representative of the people when they set up those powers and issue the directional laws that these people administer. That is not an issue with methodology though, just political opinion about the specific policies.

lenerdenator 2y ago

People with this viewpoint seem to forget that Congress often granted these agencies these powers, or at least, were vague enough in their definition to allow it to plausibly happen. It's also worth noting that many of the people who demand that Congress do these things instead of bureaucrats are saying that in bad faith; that is, they don't want it done at all and know Congress can't possibly come to an agreement on it because they're the same people funding the campaigns of representatives who go out of their way to sink the legislative process.

cal5k 2y ago
The supreme court has been very clear that congress can't delegate lawmaking to executive agencies. So no, I haven't forgotten that at all. As for it being a feature, you're right - I think the vast majority of legislating should be done at the state and local level. This isn't a secret, it was covered in the Federalist Papers in the 18th century. What's your argument in favor of federalizing all aspects of law in a large and heterogenous country? Why does the federal government need to force Texas to ban non-competes when Texas has decided not to do so but California has? What if the next government decides to force California to un-ban non-competes with a new rule issued by Executive Order? Do you not see why this is an unworkable and brittle approach?
- lenerdenator 2y ago
  > The supreme court has been very clear that congress can't delegate lawmaking to executive agencies. So no, I haven't forgotten that at all. Well, they do it all the time. FCC, OSHA, EPA... Try taking the approach that you shouldn't have your FCC license (amateur radio, broadcasting, whatever) to the courts because these bureaucrats made up the whole thing. You won't get very far. > What's your argument in favor of federalizing all aspects of law in a large and heterogenous country? My argument is that no one actually believes in not federalizing things. Not unless it fits their agenda. See the Comstock Act, for example. > Why does the federal government need to force Texas to ban non-competes when Texas has decided not to do so but California has? They need to ban non-competes because they're horrifically abusive of workers and like most things, the corporate class keeps pushing until someone pushes back. Would you like that "someone" to be the FTC through a legal process, or an angry mob tearing people apart? Mobs don't particularly care much about "states' rights" or the writings of a bunch of slave owners who lived before the creation of germ theory, after all. > What if the next government decides to force California to un-ban non-competes with a new rule issued by Executive Order? Do you not see why this is an unworkable and brittle approach? What if the next Congress decides the opposite of the current one? What if a future SCOTUS bench decides to contradict a past ruling? What's your point?