Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing.
Even if you think the back and forth isn't worthwhile, it's actually not politically avoidable because the other party will still play this game and you end up with a back and forth around an equilibrium further from what you might want.
It's not a popular opinion, but I'm pretty convinced that a few (5<=N<=10) years of administrative rulemaking being handicapped would fix Congress up pretty thoroughly.
Both major parties benefit from the status quo of Congress being incapable and everything being ephemeral—each can promise their stakeholders that if you elect them this cycle they'll make sure that things go their way for this cycle. The ephemeral nature of the "win" is valuable because if they actually made a permanent fix the urgency to elect party Y would be gone. It's the subscription model applied to governance.
My theory is that if you remove the administrative law game, things will quickly get broken enough that stakeholders will demand better, so both parties will get their act together and actually try to pass legislation again.
It's entirely possible that I'm wrong (and cue the inevitable "it's not both sides" comments), but unless something unexpected happens to the court system it looks like we'll get to see in a few years.
A conservative accelerationist who believes that wit will usher in a new era of progressive regulation and long-term social benefit? Now I really have seen everything.
Maybe. Maybe it would lead to other games being played though.
For example, now that the right has the supreme court, it has claimed a lot of extra power over regulatory agencies, elections and even congress. This effectively makes a right wing body the final arbiter; and end run over attempts to get the system working honestly.
I believe reform needs to be a lot more hands on to get things back on track.
Regulatory agencies have power which they were never granted, and the supreme court correctly found that if the executive branch is not granted power to do something (e.g. pass de-facto laws) they they cannot do that. This is a constitutional position, not a partisan position.
If we want laws then we get congress to pass laws. This is how our system works. Congress' dysfunction is not an excuse to end-run around our system, it's a reason to fix congress.
Well, if one party or another thinks the way the current pieces are lying on the board are advantageous to them, I would think it's a reason for them not to fix Congress.
Both parties are disincentivized to actually fix the problem because when unelected bureaucrats in the executive branch make all the rules then nobody is actually held accountable. Then senators and congressmen from both isles get to chain themselves to the fence and viscously bark at the other side with partisan vitrol to drum up support while getting nothing done.
The supreme court literally deferred such duties to regulatory agencies. Congress didn't intervene with bills. That's about as tacit power as you can get.
>Congress' dysfunction is not an excuse to end-run around our system
Sure it is. The whole point of the judicial system is to interpret laws and make rulings based on interpretations. If congress hates that, they need to stop slapfighting.
Meanwhile, I believe executive orders have risen back to 40's/50's era orders (i.e. orders during World wars). Again, Judicial and Congressional can stop it but no one does half the time.
> This is a constitutional position, not a partisan position
Every* previous court has disagreed. This is just your opinion. Chevron has been de-facto the way things are done since the early 1900s.
You can disagree with Chevron, but you'd have to be both blind and deaf to think that's not a politically motivated position. At which point, I'm wondering how Hellen Keller got on hacker news.
As a side-note: the constitution is, in fact, up to interpretation. The textualist's interpretation is just one. It is not more correct and, actually, is typically obviously obtuse. I mean, it's a position based on the action of playing dumb.
IMO, late 2009 / early 2010. The Citizen's United decision by SCOTUS, with a bit of a bump again by SCOTUS in 2013 when they basically nullified majority of the 1965 Voting Rights Act.
Congress is unarguably dysfunctional but (I believe) SCOTUS had a pretty large part in helping them get to where they are today...and in the difficulties involved with getting things back on track.
No, good point! I probably should have said getting things the way most American hope government would work. Or perhaps the way I think government should work, if I'm really being honest.
Based on my limited understanding of American politics, it depends on which side of the Mason–Dixon line you live on and when such a divided was relevant.
> It's not a popular opinion, but I'm pretty convinced that a few (5<=N<=10) years of administrative rulemaking being handicapped would fix Congress up pretty thoroughly.
One party doesn't believe that government should be making laws at all though.
The major parties aren't the Democrats and the Libertarians. Republican voters have plenty of policy items that they would like to become law, and Republican presidential candidates are very fond of promising them to voters and blaming Democratic obstructionism when they don't happen or get rolled back by the new administration.
> Yes, but on the other hand Congress is so dysfunctional the choice is often regulatory/executive action or nothing.
Which means that the country, through their elected legislature, has not agreed on a policy. Not coming to a new decision doesn’t mean the executive branch gets carte blanche to make up the rules.
Not coming to an agreement means the country is not at enough of an agreement. If it’s truly popular it should pass Congress. If it’s not, it won’t.
And if it’s popular and it doesn’t pass, then there’s always elections to change Congress and try again.
In addition to what you've said, it's still in the hands of states to do something about it and we, as individuals, have significantly more power to affect change at the state level.
It's 50/50. Yes, ideally it gets punted to the states, the states can mark their preferences (see abortion). What's great about that too is you can move to a state that matches your believies.
The 50/50 part of it - still there is federal vs state jurisdiction. If there's stuff on federal jurisdiction that's just a mess as far as congress never fixing it (say - immigration), states can do this and that about it somewhat (sanctuary city) - they can manage some rotten branches - but they can't touch the rotten root of federal jurisdiction
Frankly, it doesn’t mean that at all. There are myriad issues where a clear majority of the country believes something should be legal or illegal but congress either takes no action or goes against that will. The issue is that these people are far more accountable to those with the money to run their campaigns than to the common peasant the campaign ad targets. Consequently, the will that tends to get realized in congress is slanted heavily towards the interests of money, and of course it is. Lack of noncompete legislation isn’t an example of slow pace, it’s an example of companies that have money slanting politics in their favor to maintain a bit of extra leverage over their workers.
Those issues are largely red herrings. Get into actual policy details and you'll see the consensus disappear.
Marijuana legalization is a great example. It's been consensus that it shouldn't have been as illegal as it was for decades yet it's only been consensus to treat it mostly like alcohol in a handful of states.
The consensus of "something should be done" can predate the consensus of "this should be done" by years or decades, especially nationally.
You know what, this is actually a pretty good point. No politician wants to go out on a limb proposing a specific solution in case some of their demo doesn’t like that particular one.
> Which means that the country, through their elected legislature, has not agreed on a policy.
No, it means that the country has not agreed to the standard demanded by the constitution, which is an insanely high bar not required by virtually any other ostensibly democratic country.
The constitution is obsolete, undemocratic, and does not work in practice. Thus attempts to subvert it are completely legitimate. I don't understand the point of view that if the constitution says we have to do something a certain way, then we must do it that way, because those are The Rules, as if the constitution is some kind of law of nature.
Even if you think the back and forth isn't worthwhile, it's actually not politically avoidable because the other party will still play this game and you end up with a back and forth around an equilibrium further from what you might want.