note: X-posting from SCOUTS thread as it took some time to write and some may find it informative. Topic is why "Chevron deference" is necessary when we have Congress.
So "public policy" operates on multip different levels. At the highest levels are goals or aspirations: "all people should be free", "equality for all," etc. Think the Declaration of Independence. Common (or uncommon) broader goals and objectives can of course conflict with "rights," and rights are tricky things, and in most cases you end up weighing someone's "freedom" against the rights of others not to be imposed upon. But you get the point, and plenty of political discourse and debate takes place on this level (often because the lack of specifics and the generality of language allows for a lot of "slippage" in how language is deployed and the ticket to entry is fairly low).
At the next level are the sort of broad documents, like the Constitution, that set up the framework under which more specific policy objectives can be undertaken. Among other things the Constitution says, e.g., "To promote the progress of science and useful arts [goal/purpose], by securing for limited times to authors and inventors [general element] the exclusive right [general element] to their respective writings and discoveries [general eleemnt]." That is, the Constitution empowers Congress to create a law protecting patents and copyrights. This clause is there because, even though legal monopolies are "unnatural" and difficult to enforce (you need rules, and a legal and bureaucratic system), it was known by the 1780s that there are huge free-rider problems that disincentive investment in material progress if anyone can just copy anyone else's writings or inventions. However, while this clause is much more specific than "all men are born free", it's not going to get a patent or copyright system off the ground. For that you need laws.
The level of "laws" is Congresses stock and trade. The idea is that to effectuate desirable outcomes, Congress can pass various laws within the scope of its constitutional powers. Now, in a nation of 4m people with limited technology, where the fastest things move at like 30 mhp, law isn't that complex. It's complex enough where it involves specialists, but not 21st-century complex. So, e.g., you can have a simple 3-page long Patent Act passed in 1790, and the Secretary of State (i.e., Thomas Jefferson) can personally sign off on each granted patent.
https://www.ipmall.info/sites/defaul...ct_of_1790.pdf
Now, laws are great and all, and Congress does have investigatory and research capabilities to aid in making good laws (hence the Library of Congress, etc.), and has "experts" who serve on specific committees, etc., but over the course of time it was found that many of the nitty gritty details of laws are not really within the purview of general legislators, and that executive branch (that branch that ensures that laws are enforced) entities were necessary to oversee and implement, often with specialized expertise, the laws. Congress wants railroads and canals, and may make laws encouraging or directly funding such things, but then there are considerations like overlapping rail lines, nonstandard rail gauges, too many rail lines going some places and not others, pollution, etc. So, the executive needs to form an entity, such as the Dept. of Commerce to oversee such things, often with experts. Now, laws are often quite general, so Congress has empowered executive agencies (by laws, such as the Administrative Procedures Act) with the ability to draft "regulations" that are much more specific than the laws it passes. So the law may say, an Agency can set the minimum amount of steel to be used in railroad tracks (or more like, "[Agency] may provide for regulations concerning the quality and safety of railroad rails and ties." And Congress can even require, "[Agency] must base its determinations on the input of qualified engineers."
So regulations, which can be found in the Code of Federal Regulations, are typically much more specific than laws, and there are certain requirements to how they are adopted and implemented, e.g., draft regulations have to be published and set for comment, hearings need to be held, etc. (this is much of what expert-lobbyists do). For example, the current version of the Patent Act is approximately 100 pages (its primary basis is the Patent Act of 1952, as amended multiple times).
https://www.uspto.gov/web/offices/pa...dated_laws.pdf The Patent Rules (aka regulations), enacted by the Dept. of Commerce, are approximately 500 pages, and each regulation must refer to the statutory section (i.e., law) that gives the rule the right to exist.
https://www.uspto.gov/web/offices/pa...ated_rules.pdf
Here is an example of a patent regulation:
Quote:
"§ 3.24 Requirements for documents and cover sheets relating to patents and patent applications.
(a) For electronic submissions: Either a copy of the original document or an extract of the original document may be submitted for recording. All documents must be submitted as digitized images in Tagged Image File Format (TIFF) or another form as prescribed by the Director. When printed to a paper size of either 21.6 by 27.9 cm (8 1/2 inches by 11 inches) or 21.0 by 29.7 cm (DIN size A4), the document must be legible and a 2.5 cm (one-inch) margin must be present on all sides."
Again, statutes passed by Congress often impose limits on the form or substance of regulations enacted pursuant to those laws, which agencies are legally required to follow.
Often things are even less constrained and legislation will implement "compromises" that were required to get laws passed, to the effect that some laws say things like "[Agency] will promulgate regulations to ensure that pollution does not kill/harm too many people, taking into account the economic impact of the regulations." In implementing these laws, and the regulations adopted to implement them, agencies often wield significant power, though power constrained by the law, e.g., the requirement for economic analysis.
When private actors are upset by such regulations they can sue.
Chevron deference basically says, "Unless the agency is acting manifestly irrationally or contrary to statute" the lawsuit loses. As much as anything else, this is so judges don't have to spend their time recreating or vetoing the subject matter expertise of agencies. So, Chevron Deference permits the regulatory state to exist without being unduly gummed by private actors or political winds, and exchanging the views of members of the judiciary for the subject matter experts in executive agencies threatens to give the courts and private parties essentially a veto over the regulatory state and, in a sense, a veto over Congressional legislation.
So, that is the issue, and what the conservative legal movement wants to do is push things back closer to how it was in the 1820s than the 2000s, which would effectively hobble the regulatory state. Without Chevron deference (or something very similar) you could potentially strangle much of the modern state. [The conservative legal movement has a parallel in any society, e.g., modern EU states, where there is tension between what citizen Joe-Bob wants (e.g., fewer immigrants, fewer requirements on pay-day lenders), either because his is an interested party or he is simple enough to think the world is simple.
Finally, for some completeness, below regulations are the things used to guide the actual people to implement them, such as the Manual of Patent Examining Procedure, a 2000 page manual, based on the regulations (and the laws and court cases), that individual patent examiners use to evaluate individual patent applications.
https://www.uspto.gov/web/offices/pac/mpep/index.html
This is a long way from "all men are equal", and rarely the subject of controversy (because only subject matter experts can debate them), but it's the difference between idly musing about flying a rocket into space and actually flying a rocket into space. Acquiring expertise about a topic is one thing that turns teenage libertarians into functional adults.
Finally, in brief, it should also be noted that "unwritten" culture or "know how" often directs how rules are implemented as much as the rules themselves. Think of the "unwritten rules" cops or prosecutors may follow. In a recent podcast, the liberal Philadelphia DA, Larry Krasner, who is reforming the office noted that "practice trumps policy any day."
So, to answer your question, the nature of reality is why agencies and not Congress draft and implement regulations and why Cheveron deference matters.
Last edited by simplicitus; 07-11-2018 at 05:22 AM.
