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: Is the excrescent nature of agency governance a threat to representative democracy ? Do we need comprehensive reform?
No to the first question, yes to the second.
No to the first because, as I said, if it weren’t “agencies” it would be some other way of avoiding responsibility, siphoning off money, and acting dictatorial. In my opinion, the ills you attribute to “agencies” is symptomatic of the deeper illness; which is corruption, fraud, and abuse of the public trust, abetted by an unstoppable drive toward subjugation of the poor by the rich, a drive going on for centuries.
That is the reason comprehensive reform IS needed, because the driving force behind the troubles you think exist in agencies is the drive for power and money.
So what I have been trying to say, plainly, is that you are check-mated, not by ME, but by human nature and modern circumstances, and here is why:
The US Government is necessarily large. In the interest of fairness and charity, both of which I strongly agree with, we have passed what must be tens of millions of regulations that must be followed, if we count every line that someone, somewhere, must abide by. We have done that (and created agencies to do it) largely out of citizens insisting upon it.
We did not think that companies should be allowed to sell us “medicine” that did nothing, or worse, poisoned us (like mixtures containing mercury as if it were a magical ingredient). We were repulsed by the practices of the “Jungle” of industrial food, including feces, dirt, rodents, cockroaches and more being mixed into our food, and demanded it be regulated. We were incensed by fire-trap buildings, and demanded building codes (about 75% of the building code is about fire prevention and escape, the rest is about structural integrity, load bearing, and such). We created Social Security and Medicare and Medicaid in response to pressure by citizens for reform. The current “Homeland Security” is a response to the outrage of 9/11 that all the information to stop that plot existed in various intelligence agencies, and the walls and rivalries between them created the failure to prevent it. The current healthcare bill is in response to the outrage of citizens about insurance company practices. The laws against sexual harassment, discrimination, and workplace safety are due to outrage, the laws on minimum wages and child labor are due to outrage.
Pick a law or regulation by an agency, and chances are very high it exists because somebody, at some time, was violating it for a profit, harming people, and could not be sued or prosecuted for it.
Which tells us something about human nature, which is important: There are always a large number of people that will do anything to other people to satisfy their desires, for sex, power, or (most often) money that can buy both. In every age, in every industry, including supposed charities and churches, there are ruthless sharks, without conscience, that will only be deterred by one thing: Threats to their money or freedom.
So that is the point, the government is necessarily large because we want all these laws to deter the sharks that would exploit or subjugate us or defraud us or endanger us. Further, without an improbable wholesale cultural change, we will not talk people out of those protections.
But it is impossible to ENFORCE these tens of millions of lines of regulation without an enormous bureaucracy that can determine what is illegal and enforce it. You cannot have one body, like the Congress, make those decisions alone.
If agencies were ruled out, the effective replacement of agencies would exist. Congress would hire permanent “assistance” to determine what the laws for the FDA should be; then Congress would vote on 150,000 page law as a block that also authorized the FAA to enforce the laws they passed. But the “assistance” would be permanent, the assistants would interact with the FDA to learn what new laws should be passed, then once a quarter, Congress would pass new laws. So there you go, the effect of agencies without the agencies making their own rules (but they do, really, because Congress won’t read the new regs, it is boring.)
If you think that is impossible, do not forget the Congress makes its own rules: So they can declare that henceforth, such agency laws can be passed with ONE vote in favor, that of the Leader of the House or Senate, and cannot be filibustered in the Senate. Or any other rule they want. They can pass them in blocks of agencies: “Here are the new regulations this quarter for all 3000 intelligence agencies; what say you, Leader?” At which point he uses his rubber stamp to say, “yea. next.”
How would this be materially different from agencies?
As for REFORM, I agree, but this particular reform would be ineffective. Sure, we can work it around so that only the House and Senate actually approve what will be legally binding; but that will just end up being the charade I outlined above. In effect, the agencies will still be setting their own rules. The Congress will make minor adjustments to THEIR rules, so they can approve new agency rules blindly and automatically.
They will have to, because there is no way they can pay attention to the tens of millions of regulations demanded by “we the people” in the interest of our own physical and financial safety from the sharks among us. Which are still feeding on us, by the way, and we are vociferously demanding even greater protection from them.
@Matt Johnson: Perhaps you should do some voluntary time in the military, asshole. And don’t expect any purple hearts.
I DID do voluntary time in the military, Matt, I joined immediately upon graduating high school. Alas, no purple hearts, it was a cold war. I finished with an honorable discharge, and used the GI Bill to attend college. As for being an asshole: mea culpa, dumbass.
Comprehensive Environmental Response, Compensation
and Liability Act (CERCLAt-
In that Court speaking through Souter advovated a curbing of common law powers of the Court, did the use of State law solve the issue for lower Courts ? The issue here was parent companies and sunsidiearies responsibility for clean ups.
Hi,
When considering Chevron, and it’s impacts, I have always wondered how the Court legitimates federal interstitial common law practices, in which they are answer a litigants question, and how that sqaures with interstitial regulations that would arise under the Chevron deference ?
bhoyo,
I am so sorry not to have more time these last few evenings but duty to the up coming election calls and they all want to meet in the evenings and I have to spend daylight hours preparing.
I readily admit to having a “thing” about Thomas which colors my attitude concerning almost anything he does so any opinion I express about him must be taken with a grain of salt … even ignored. I have some appreciation for Scalia but he tends to ridicule too much when he’s on the losing side and I often get the sense he’s auditioning for a host spot on SNL. The Court and the country deserve better and there are many who would preform better.
Hi,
read this from Blouise
“that oral argument is something more than a play date for expansive egos and that sarcasm, albeit an occasionally useful rhetorical tool, is not a substitute for reason in a written opinion” (Mike Appleton)
What a devastatingly beautiful critique.
I like it, it is appealing. I love the oral argument phase, love it. God Bless C-SPAN, they archive it, click a button and there it is. I have spent 20 years studying the Constitutions formation, the maladies they wished to avoid, the remedies they applied. It is a misfortune inseperable from our present system that the quodlibet about our Constitution, only matters when voiced by the NINE. I do appreciate all the Justices, Scalia included. I have read Thoma’s opnions to see his reasoning. So many dont and to me that is a shame.
Tony C,
I am sure wiki is often accurate, but I have never found use for the source. I am still trying to figure out what you are attempting to say. My original point is that comprehensive reform in Adminstrative Law is needed. One stellar example is the issue with Chevron. There the Court is delegating interpretive powers regarding statutes, in this regard originating statutes, to agencies whose powers have increased.
My additional fear is that, despite your objections, all three powers exist under one roof of an agency. I am also aware that agencies are not as accountable to the public as say a Senator. This is a technical observation, I cant even find three people who can name an Agency head. You also know that Congress has been known to side step repsonsibility by asserting the agency role.
I am away from my source on this, so take it for what it is worth, but even FDR feared the possibilty of creating an unaccountable 4th branch of government. I doubt we could readily decide which adjective to use when describing agency growth, is it proliferate, or maybe excrescent ?? LOL
So here is the original question, again. Is the excrescent nature of agency governance a threat to representative democracy ? Do we need comprehensive reform ?
mike,
However, I do not believe that the current attitude of the public toward the Supreme Court is related in any manner to FDR’s battles in the 1930s.
The battles od FDR are the very source of the contentiousness we experience today. An extensive reading of what is called the Progressive Era of the Court reveals a number of dramatic shifts in the powers that the Congress could assume. Additionally a number of Amendments went through amazing changes, for example 4, 5 and the Tenth Amendments.
This is an issue which is embraced by partisans of either stripe, who of course line up doggedly to opposing points of view. All of that aside this is not an issue either side can annex into their respective party planks, it is instead an issue for all Americans. Without judgement I can assure you FDR and the Court was working under duress, and of course viewed expediency as imperative. There exists a long train of FDR quotes stating that amending the Constitution is not the way, for the Constitution is what the Justices ( USSC ) say it is. To that end we all know the result of a ‘switch in time that saved nine’.
Again without any judgement on that period, the situation today is a tad different. We have changed the orbit and symmetry of Constitutional Powers by not only the bench, but the bench has also acquiesced to giving huge deference to legislative issues which the Court deems poltical by nature. The result has been a proliferation of national powers, that even the term excrescent doesnt cover. The good things that have resulted are fanatstic, and we all appluad them, yet it is time to at least consider a recrudescent attitude of Constitutional observance before we end with a plenary powers at the National level.
I remember the Earl Warren era as well, you are not alone.
Well hi, Blouise. You are devastatingly kind.
Tony C,
Perhaps you should do some voluntary time in the military, asshole. And don’t expect any purple hearts.
bhoyo,
I must say that your rhetoric and logical flourishes are reminscent of William F. Buckley, Jr..
“that oral argument is something more than a play date for expansive egos and that sarcasm, albeit an occasionally useful rhetorical tool, is not a substitute for reason in a written opinion” (Mike Appleton)
What a devastatingly beautiful critique.
@Bhoyo: I am not a lawyer, so yes, Wikipedia, and as I qualified what I read from Gene, “I am just reading from Wikipedia…” because Wikipedia is sometimes inaccurate.
However, Wikipedia is often accurate; in this case they provide footnotes to specific SC cases. The question should not be whether you hold my source in disdain but whether the information it contains is accurate.
As for the post before that, the fact that one CAN appeal to a Title III court implies the separation of powers continues to exist. I accept Gene’s statement that I was factually wrong, it is true that Article I tribunals can be created.
I did not argue that Agencies could not be created. My argument is that they do not undermine democracy or representative government, they are a practical necessity for managing an organization of the size and scope of the United States, and you can still take them to regular court if your rights are violated. The judicial powers (and executive powers) they have do not usurp any powers of the President or Title III Court system, they still answer to them and are subordinate to them, as the Constitution says.
The only exception I can think of since I first wrote is the military justice system, but with an all volunteer military, I think one DOES voluntarily subject one’s self to that restriction of rights needed to become a member of the military.
My larger point was that what I gather is your preferred solution of “No Agencies” is simply infeasible as a means of governance, and the idea that delegation of power to representatives has some implied limitation on re-delegation does not make sense.
I was a division manager of a large company for three years, I did not personally manage or direct every person that answered to me. I do not expect Congress, primarily trained in the law, to personally set every regulation (or even know what it means) for the FDA, EPA, FAA or any other agency. Do you think Congress should be voting on what the maximum number of flight hours should be between the sonic inspections for microscopic stress cracks of a machined titanium turbine blade for a commercial aircraft? How about for the rivets holding the aluminum skin on?
I frankly would probably not FLY if Congress decided issues like that directly; I want them developed by experts. I also would not fly if those inspections were not legally mandatory. Which brings us back to expert agencies that can pass regulations in their field of expertise, like aircraft safety standards, or pollution standards, or educational standards or drug standards.
Follow up: Do you know who Niccolò Machiavelli was? He wrote a book for a certain prince. He was trying to gain favor with the prince. If the people do this, you do that. Does it remind you of Karl Rove?
Since when is reason a substitute for written opinion?
I know that I have a more expansive view of the Commerce Clause than Gene H. and a number of other posters on this site, but perhaps I simply have a broader opinion as to what may fall within the class of activities described as “interstate commerce.” However, I do not believe that the current attitude of the public toward the Supreme Court is related in any manner to FDR’s battles in the 1930s.
I am old enough to recall the reaction to the decision in Brown v. Board of Education. I am old enough to recall the ubiquitous “Impeach Earl Warren” billboards that dotted the countryside. The South was in virtual open revolt over desegregation and would continue to fight against racial equality for decades. Nonetheless, the outrage against the court ultimately subsided.
But this time it’s different. Earl Warren was an extremely popular governor of California and an adept politician, but he did not attempt to politicize the court. The current court, however, is the most overtly political of my lifetime, beginning with the Bush v. Gore decision. Moreover, justices such as Scalia have damaged the reputation of the court as a serious deliberative body by not knowing when to simply shut up. We are better served by an institution whose members understand that their roles are, and are intended to be, lonely and somewhat remote, that oral argument is something more than a play date for expansive egos and that sarcasm, albeit an occasionally useful rhetorical tool, is not a substitute for reason in a written opinion.
wikipedia ?
Are you serious ?
Tonyc,
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.
I have made neither comment, so forgive my being misguided.
Having taken two courses to date in the topic, First Adminstrative Law, the second Regulation and Deregulation, as well as conversing with Law School Professors, at other institutions, I feel I am pretty solid ground.
I am at best confused by the follwoing comment you made:
The fact that an agency emulates a court proceeding internally does not MAKE it a court proceeding internally. The Congress can delegate its authority, but it specifically does not HAVE the authority to act as another branch of government; i.e. Congress cannot create an agency that will act as the Commander in Chief. That power is reserved to the Executive Branch. Congress cannot create an agency that will act as a Court of Law operating on its own theory.
If you agree to be bound by an agency’s internal procedure, that is a different matter, just as you can agree in a contract to be bound by arbitration instead of going to court.
The Adminstrative Courts have the full force of law, and are conducted by either AJ’s or ALJ’s One excellent example is the EPA. All of the courses at all law schools emphasize that both orginating statutes ( congressional acts relating to agency power ), and the regulations written by that agency have the full force of law, although the Commander and Cheif comment you made is true, the executive agency branch can fine heavily and investigate
. Your comment if you agree to be bound? You dont have an alternative in many instances, maybe this is what you don’t comprehend. Maybe a read of the Code of Federal Regulations would help you.
And espacially this:
Congress cannot create an agency that will act as a Court of Law operating on its own theory.
The overall point which is now Law, not theory is that under the ACA congress can create an agency, and has done it many many times, tha internally possesses internally all three powers of governance. Executive power, to investigate and fine, legislative to exapnd orginating statutes into regulations that have the force of law, and a judicial powers. Above I listed the process of appealing to Article 3 courts if one wishes but it is not as easy as it seems.
@Gene: Thanks for the clarification. I am just reading from Wikipedia, but it says: “The existence of Article I tribunals has been controversial, and their power has been challenged before the United States Supreme Court, which has determined that Article I tribunals may exist, but that their power must be circumscribed and, when a potential deprivation of life, liberty, property, or property interest is involved, their decisions are often subject to ultimate review in an Article III court.”
Also from Wikipedia, “The Supreme Court has ruled that only Article III courts may render final judgments in cases involving life, liberty, and private property rights, with limited exceptions.”
Since the Article III courts are the standard courts; including the SC, am I wrong to assume that if the Bill of Rights is being violated by an agency or Article I tribunal, then one can take that dispute to a regular court?
“Congress cannot create an agency that will act as a Court of Law operating on its own theory.”
Technically not true, Tony, although you are sniffing around the truth concerning the Separation of Powers Doctrine and its inherent limits on agency. One of enumerated powers of Congress found in Art. I, Sec. 8 is “[t]o constitute Tribunals inferior to the supreme Court”. In doing so though, Congress may not otherwise violate the Separation of Powers, i.e. it couldn’t create a tribunal that usurps a CoC role of the President or a court that is superior to the SCOTUS (absent an appropriate amendment).
@bhoyo: The fact that an agency emulates a court proceeding internally does not MAKE it a court proceeding internally. The Congress can delegate its authority, but it specifically does not HAVE the authority to act as another branch of government; i.e. Congress cannot create an agency that will act as the Commander in Chief. That power is reserved to the Executive Branch. Congress cannot create an agency that will act as a Court of Law operating on its own theory.
If you agree to be bound by an agency’s internal procedure, that is a different matter, just as you can agree in a contract to be bound by arbitration instead of going to court.
In the interest of fairness (and perhaps to instill a false sense of authority or finality) agencies may call their processes after court processes, such as hearings, discovery, adjudication, or appeal. That doesn’t make them the real thing, just like wearing a powdered wig and a black robe wouldn’t make me a real judge. If you believe an agency has violated your rights, you can still bring suit in a REAL court. Congress can not delegate power it does not have.