That legal philosophy is a dog whistle. The fact is congress did write these laws, and they wrote them in this way with the understanding that they would be executed by the executive branch and interpreted by the courts as they have been for generations. Telling congress to go back and rewrite the laws, and to specifically rewrite them in a way that is wildly impractical, is simply striking laws from the books that the courts have no authority to actually strike down.
That's why, instead of trying to figure out what Congress intended, people should just worry about the law as written. Congress can always make changes.
You seem to be suggesting that Congress making law is intruding on the power of an agency to make Administrative law? The latter is not (supposed to be) an actual branch of government. Congress has full power to rewrite all the administrative law as they see fit.
This is the crux of the problem. The "Executive branch" is basically the cops. That leeway lets the cops invent law, prosecute you, and potentially imprison you. There's another case where the executive branch effectively acted as the legislator, cops, and the judicial branch (they prosecuted someone for a rule they created and found them guilty, all internally).
Congress needs to do these things, via simple and explicit laws that are clear and easy to understand. The role of the executive is _enforcement_, while the judicial arbitrates.
When it’s considered normal for Congress to vote for laws that they haven’t read because the laws are so verbose that it wouldn’t be practical I don’t hold out much hope for the sanity you are suggesting.
Congress has no ability to do this, period. If they screw up and pass something ambiguous that gets interpreted contrary to their desires, their only remedy is to pass a new law to fix the problems. That will only -- by design -- cover new cases, as they are constitutionally barred from passing legislation that takes retroactive effect.
Agreed. Only congress can fix this, the law is the law. Do they really want to give Trump and the executive branch the power to pick and choose what laws to enforce?
I'd say that does an end run around the process the Founders put in place for good reason.
It was not specified in the Constitution that the Congress shall delegate the finer details of lawmaking to the Executive Branch in the form of Administrative Law. It said that legislative power is wielded specifically by the Congress. Given that judicial review takes as an input the intent Oof the Congress, it seems daft to leave the intent to question by not having the details worked out by the legislature.
This has the practical upshot in disincentivizing unnecessary or frivolous lawmaking to boot. If instead of spending time trying to jam in notionary laws into an omnibus bill somewhere, a legislator had to come to terms with the how, not just the what, I'd wager we'd over time start to see a far morecohesive legal landscape begin to take shape.
While I agree Congress is quite dysfunctional, the sheer difficulty with which to get a bill written, passed, and signed into law is by design. Legislation is supposed to take a large amount of deliberation and time.
Also consider that this works both ways: If something is passed into law by Congress, it's going to take monumental effort to undo it just like getting it passed was. An example of this is Obamacare, where getting it passed was difficult and revoking it has been difficult.
Likewise, the flippant nature of orders authorized by the Executive Branch is also by design. Such orders are meant primarily to address short-term concerns requiring immediate or expedient attention, not long-term concerns that require thorough deliberation.
If congress doesn't change something, then that means they have determined no change is necessary.
That isn't an invitation for the executive branch (or judiciary) to overreach.
In theory congress could go years without passing a single law, and that would be fine. It would signal that the current laws are sufficient.
(As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)
No the US Congress in their political cowardliness passes objectives they wish to see, they then empower unconstitutionally the executive branch to create numerous "administrative laws" to achieve those objectives.
The Supreme Court refuses to strike down these vague laws as unconstitutional, which over the decades has grown the bureaucracy exponentially until we have at present what is in effect a 4th branch of government not answerable to any of the 3 official branch, not with out wide reaching reform, and upending of governmental structure.
>>You don't get to start fresh;
This is where the I wish Jefferson would have gotten his way.. "The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right." -- Thomas Jefferson...
just having a bit of fun. I completely agree with your comment as a statement of how things should be. My point is that we already can't force congress to do broadly popular things, let alone boring, controversial, difficult, politically fraught things. As a fan of having a functioning government, I think trying to force 535 selfish, rich, politically motivated lawyers to research, write, and vote on hundreds of thousands of pages of passable regulations is a nonstarter.
Congress wouldn't ratify 99% of court decisions even when the text of their bill is very clear l. The argument you make in the last sentence of your post is very weak.
The Executive can't pass laws, that's the job of Congress. Good luck with today's type of legislative bodies, too much political posturing and not enough common sense laws. Getting Congress to agree on anything is like herding cats. Actually herding cats is more doable with practice :/
reply