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Comment by jaycroft | Hacker News Reader

And FINRA is made up of brokers and banks but overseen by the SEC. The EPA doesn't directly monitor every factory. The NTSB sets general testing guidelines and standards and seems to have greatly increased auto and aviation safety, but they can't police everything and at least to the public seem to regulate after the fact.

The general term, I believe, is self-regulatory-organization. The theory, I guess, is that the government sets the laws and says very generally, "no fraud", and "you have to write your own rules and make sure they're good", but offers little technical guidance otherwise. I think this could work well if there were very heavy penalties for failures to self-police, but in practice the revolving door between government and industry incentivizes slap on the wrist style punishment. It's a hard problem and I don't think we're doing well over the last few decades.

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... and for most of the agencies, it's not that their budget is small or the agency itself is incompetent: it's what's required by law and they can't override it unless Congress decides to change the laws.

You don't want regulatory agencies creating law on their own though. Not only is that unconstitutional but the reason its unconstitutional is because you would inevitably end up with some busybody who is not accountable to the people massively over stepping their power and creating tyranny.

Regulatory agencies create "laws" all the time. When Congress creates legislation, they rarely spell out all the details and implementations. This is left to the agency to interpret, and they have a wide latitude in both interpretation and enforcement.

You're referring to Chevron deference and/or Auer deference, and it is worth noting that those are in the long process of being curtailed/attacked heavily. :(

Chevron defense is separate and distinct from Auer defense. The Chevron defense applies to Congressional legislation, Auer is applied to an agency's own vague regulations. I have no issue with restricting the Auer defense. If an agency issues vague regulations, then that's their own fault. You're correct that they're both being attacked, but the underlying issue won't go away; Congress can't/won't dictate every detail of legislation especially when it comes to general/vague legislation. They have neither the inclination nor domain knowledge to do so.

Look up Administrative law, and prepare for the pucker moment when you realize that what you described is actually exactly how it works.

> Not only is that unconstitutional

While I do study relevant US laws as required in my job (requiring familiarity with how law operates in countries where we operate), I am not an American, but I do understand certain things with regards to the US constitution and relevant case laws.

The Congress originally meets only for a few months' time, usually less than 6 months. This is due to the reality of the time, where travel is slow and representatives only receive a comparable salary to most people. Thus, it is exactly empowered to delegate certain powers to the executive branch. As someone mentioned, the administrative law is a cornerstone law and yet it delegates many powers to the executive branch.

In fact, said law and many, many, many similar (federal) laws have been upheld constitutional in the Supreme Court. There are certain powers that only Congress can do, and cannot be delegated to the executive branch, but it is clearly laid out in the constitution what those are (notably spending). Now I said federal because in certain states, the legislature can only delegate in very narrow situations (usually only in cases where lives would be in danger or in the protection of properties and where a need of immediate response is demonstrated).

So I'm confused why are you saying that is unconstitutional, in fact American history shows a very different answer. If you think that should be not allowed, you're entitled to your own opinion. However unless I read it incorrectly, the constitution, even considering the various amendments, is unfortunately not aligned with your opinion.

> the constitution, even considering the various amendments, is unfortunately not aligned with your opinion.

Sure it is. Article I of the Constitution says that all legislative power shall be vested in Congress. That means anything that has the force of law--and all Federal regulations created by executive branch agencies under the current US regulatory regime have the force of law; you can be fined or jailed for violating them--has to be passed by Congress using the process described in Article I. So any Federal regulation that has not been passed by that process--i.e., every one of them--is unconstitutional.

The fact that current US jurisprudence disagrees with that statement just illustrates how far current US jurisprudence has diverged from what the Constitution actually says. The status of Federal regulations is by no means the only example: current US jurisprudence says that Congress can regulate farmers growing crops for their own personal use because of the Commerce Clause; and that a city government can use the eminent domain power to evict people from their homes and turn the property over to a private development corporation (that ends up never developing the land anyway), and that counts as a "public use" under the Fifth Amendment.

> You don't want regulatory agencies creating law on their own though.

While I agree with this as a matter of personal opinion, it is not at all the actual fact in our current regulatory regime. Federal regulatory agencies create law all the time. Look at the Federal Register; every regulation in there has the force of law and was written by a regulatory agency.

> you would inevitably end up with some busybody who is not accountable to the people massively over stepping their power and creating tyranny.

Which is exactly the situation now.

It's called rule making authority. Normal, necessary, obviously correct form of governance.

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