It appears that Congress is not the only branch with falling poll numbers. According to Pew Research Center, the Supreme Court now is viewed favorable by just roughly 50 percent of the public.
Only fifty-two percent of Americans hold a favorable view of the Supreme Court today. Notably, “[t]here are virtually no partisan differences in views of the Supreme Court: 56% of Republicans, and 52% of both Democrats and independents rate the Supreme Court favorably.” Of course, popularity is not a requirement for the Court, which was given jurists with life tenure to protect it from public opinion. The Court has often been the most unpopular when it has been the most right, such as on desegregation.
Yet, it is striking to see how all three branches remain unpopular with most Americans. Once again, it is striking how the public holds its government in such low regard. Yet, citizens feel incapable to forcing change due to the monopoly of power exercised by the two parties. I have previously written how we need to address this crisis with fundamental changes in our system. The Framers gave us the tools to force such changes, including reforming the Supreme Court. I have previously called for the Court to be expanded to 19 members. However, there are other proposals for reform, but none are being considered in a political system locked down by two parties.
Source: Pew
@bhoyo: have an issue with the delegation of powers, as I do believe that representatives are empowered to act on our behalf, but the original delegation is a one time issue,
I do not believe that, and it makes no pragmatic sense. My representative is empowered to use his own binding judgment as he sees fit, absent corruption or bribery, in ALL legislative matters for his term of office.
Proposing something else is not impossible, but it must also be logistically achievable. A direct democracy like ancient Athens would be impractical, the number of issues would overwhelm anybody that worked for a living, and therefore would be unfair as well, because it would favor those that can afford to NOT work for a living, or can hire others to research whatever laws are being voted on du jour.
We hire representatives, and allow them to hire staff, and give them that mission of determining a fair path through the maze of laws, because it is a full time job for multiple people.
If your complaint is simply that you do not like the result, or think it is unfair, or think the politicians are corrupt, that is a different argument entirely. The idea that the things you do not like about how the government treats us citizens are due to the use of “agencies” is misguided.
The reason the government acts as it does is because it controls trillions of dollars, a raging river of money, and diverting the tiniest little rivulet can make somebody breath-takingly wealthy. The power and money attracts ideologues and ruthless people that will use any means necessary to get elected, without qualm or conscience, in order to control either other people (in the case of ideologues) or the money or both.
Corruption is like water, it will seep through the tiniest crack. Eliminate agencies and they will find another way; eliminate that and they will find yet ANOTHER way. Until you find a practical way to stop the river of money without simultaneously overwhelming everybody with detail, I do not think any tinkering with the rules of the system will help; the greedy and the egomaniacal will just find a new path to dip their buckets into the river.
7
Complaint Answer
Hearing before
Administrative Law
Judge
Order of
Administrative Law
Judge
Appeal to Governing
Board of Agency
Final Agency Order
Appeal Court for
Review of Agency
Decision
Court Order
The Process of Formal
Administrative Adjudication
Adjudication
• Hearing procedures.
– Resembles a trial.
– Parties can use the discovery process, hear
testimony, present evidence, and crossexamine
witnesses.
– Significant difference between a trail and an
administrative agency hearing is the relaxation
of evidentiary rules ( hearsay can be introduced
as evidence).
Adjudication
• Agency Orders.
– ALJ renders an initial order.
• May order to pay damages.
• May issue a cease-and-desist order.
– An appeal can be made to the Board or
Commission.
– Further appeal can be taken to Federal Appeals
Court.
Agency Functions and
Procedures
• Three types of operations that constitute the
administrative process.
– Rulemaking
– Enforcement
– Adjudication
• The Administrative Procedure Act (APA) of
1946 imposes procedural requirements on
agencies that they must follow in their
rulemaking, adjudication, and other functions
Agency Powers and
the Constitution
• Under the “delegation doctrine” Congress has the power
to establish agencies that can create rules for implementing
those laws (Article 1).
• Administrative agencies exercise powers normally divided
among the three branches of government.
• Principle of checks and balances allows each branch of
government to act as a check on the actions of the other two
branches – not true with agencies!
• Only the legislative branch is authorized to create laws.
• Basis of all administrative law is generally held to be
implied by Article I of the U.S. Constitution.
Altough a tad simplistic this may be helpful.
http://www.aug.edu/~sbadph/mgmt2106/2106dph06.PDF
Tony C.
I dont have the current numbers but te CFR in 2007 had about 145,000 pages in it.
I have an issue with the delegation of powers, as I do believe that representatives are empowered to act on our behalf, but the original delegation is a one time issue, no one may surrender my will, but myslef, that orginal power cannot be re delegated.
As far as direct supervision of the Agency functions, I have this to offer in the rule making procedure now ongoing with Dodd Frank.
http://www.davispolk.com/dodd-frank/
Hi,
Well welcome Tony C. I hope you teach me a lot of things. My posititon reagrding the separation of powers doctrine is an old one, and a quick Google search of the topic will give you a full idea of where and why I get the ideas. The issue is well presented by Dean Borchers from Creigton University Law School, and the separation of powers, delagtion issues are well discussed.Adminstrative Law ajudication is a hot topic, as it impacts procedural due process. It is a fact that all three powers are centered in any agency.
bhoyo,
You’ll like Tony C. I like him a lot. He argues points, not personalities and I give you fair warning … do not underestimate his depth of knowledge.
I have to run and will write more on this Agency matter tomorrow.
@bhoyo: Locke has a definition of what “consent of the governed” means, that does not make it definitive or inviolate.
In any case, this is false: In the agency structure all three powers exist, all with the force of law.
No, they do not. The law is passed by the Congress. If an agency violates your rights you can sue them, in a REAL court, and the agency cannot stop you from doing that. No agency has the right to unilaterally deny you the right to sue for damages or if your rights are violated.
The powers of the agency (which can be great) are given to them by the Congress, but no agency can create binding law out of whole cloth, that requires a Bill be passed by Congress and signed by the President.
The IRS cannot arbitrarily increase your income taxes, that is still up to the Congress. The FBI cannot declare you an indentured servant for life. The EPA cannot regulate CO2 emissions without the consent of the Congress.
Agencies are now empowered to dispense money from Congressional coffers, under broad guidlnes from Congress, but the final decision rests in the agency itself.
At least in the USA, agencies have very explicit budgets that also have relatively narrow margins of discretionary funds, and those budgets are available for review by Congress before they are approved. In some cases, they are set by Congress, or the President, and there are political fights over the levels of them or the specifics of them; for example, the recent fights over student loan interest rates and women’s health care funding are budget battles for agencies controlled by Congress.
Agencies do not get to arbitrarily exceed their budgets, and do not get to make “final decisions” about 90% of their budget: They have to spend it as they spend it every year, on personnel, office supplies, offices and services like telephone, janitorial, power, Internet services and maintenance of machines and equipment.
All agencies are directly controlled and can be disbanded by the Congress of the United States by repeal of the law that authorised the agency to exist in the first place. Agencies only make rules they have been authorised to make by the Congress, relating to their mission, and no Agency rules can be contrary to the Constitution and Bill of Rights.
Blouise,
And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed..
Hi,
I of course read your post, and see many of your points. Above is a quote from John Locke’s Second Treastise on Government. In a very explicit fashion he outlines that the transfer of power, from a constitutency to a leader is an exclusive power, of the constituency, or the governed. They alone have the abiltiy to assign their consent, that power is absent to those whom they have delegated power.
In the agency structure all three powers exist, all with the force of law. ALL THREE POWERS EXIST UNDER ONE ROOF> Quasi Executive power, to enforce, Quasi judicial where Alj’ function as judges, and hear cases, and of course lasytly quasi legislative power, in the capacity of formal and informal rule making. Hence an agency, unelectted,has the power to make the rules, enforce the rules, and try the rules. Few examples of a violation of the separation of powers are this blatant. The size and scope of agency governance is rarely recognized, but for example the SSA conducts more hearings than all Article 3 Courts. Another amazing fact ALJ’s are statutorily exempt from a review. Agencies are not required to post their quasi judicial dterminations, although they have the same force of law as Aricle 3 courts.
When agencies begin rule making, after an auhtority statute is passed, proposed regulations are posted in the Federal Register, a publication virually unknown to the American People, at the end of the year a Code of Federal Regulations is published, that is a document unreadable by the America People, multi volumes and thousands of pages.
Agencies are now empowered to dispense money from Congressional coffers, under broad guidlnes from Congress, but the final decision rests in the agency itself.
Time for reform ??
It’s called democracy. Why do you think the euro is about to implode? Cake, anyone?
@bhoyo: I see no reason that is devoid of the “consent of the governed.” We elected representatives and gave them the power to make laws, including laws that create agencies which answer to some political branch, such as Congress or the President.
The agencies do not have any inherent authority that is not encoded in the law that created them. And it is 100% with the consent of the governed: Within two years we could, theoretically, replace the entire House. Within four we can have the Presidency and a filibuster proof majority of the Senate. Within six we could overturn all laws and rewrite the Constitution in its entirety.
The fact that we citizens do not do that is entirely by our own choice and complacency and inability to agree on anything, the government we have, agencies and all, is by the consent of the governed, because the one thing a supermajority of the governed can agree upon is they do not want to give anything up in order to make the system better.
Blouise,
Of the rationales justifying Agency Governance is of course the idea of expertise, an expertise which we cannot expect to present in the turnover of the House. As sound as this is, it is still devoid of the ‘consent of the governed’, necessary to our system. As Verkiul adaquately described there is an agressive attitude in the agencies to expand their influence. Endemic to our system is a direct link of those in power, through the ballot box, to their constituency. In agency governance, which is as excrescent as it ever was, the authority is one step outside of the representative system we have. This is a problem for the reasons you are aware of. The greater the proliferation of agency rule, the more the representative influence diminishes, especially with the employment of the Chevron dictums.
bhoyo,
From the above: “The absence of deference does not mean that a court will not find that the agency has jurisdiction. What it means, however, is that the court will not assume jurisdiction. Rather, the burden of proof is on the agency to demonstrate that Congress expressly or implicitly authorized it to act. If an agency’s jurisdictional claim is denied, express authorization from Congress can always be sought. That, it seems to us, is the better balance under our scheme of separation of powers as it has been interpreted by the Chevron case.”
That’s what I meant to say. 🙂
Seriously, Gellhorn’s and VerkuilI’s conclusion is one I believe to be logically sound. Thanks for the link for it was easy to follow the reasoning offered. “How to control overly expansive readings by agencies of their mandates.” The Court must kick the ball back to the Congress wherein the check and balance of the ballot box fully resides. Or am I being too much of a purist again and failing to acknowledge the complexities of this modern-day government that seems unable to follow the “for simpler times” Constitution? (yes, that is my tongue in cheek)
Blouise,
Opps try this
http://constitution.org/ad_state/gellhorn.htm
Blouise,
Just a quick read, and from Verkuil.
http://constitution.org/ad_state/gellhorn.htmt
bhoyo,
By the way, I just found out that one of my younger friends is directly descended from James Wilson on her mother’s side. He’s her great-grandfather x5. She told me he spent time in debtors prison while he was serving on the Supreme Court.
“what is the impact of prolonged use of chevron defense? ” (bhoyo)
Well, we are able to readily see the impact of a prolonged use of the Chevron deference. Bluntly, the Court grabbed some power and are not about to give it up. It is something almost everyone of the Foundings warned of for any one of the three branches. Power unchecked by the check and balance system.
bhoyo,
Re Thomas … I know, I was just being a smartass.
I do so love raising the specter of Anita Hill. Singlehandedly, through her testimony, that woman did more to get females elected to Congress than anyone in our history. It wasn’t her intent which makes the whole thing even more delightful.
Blouise,
Hey, just a thought, given the state of interstitial legislation, what is the impact of prolonged use of chevron defense? Can the courts be transfering the ill defined interstitial role they have exercised, which is far from overall acceptance, to a a body so far removed from Constitutional powers ?