It suppose I can see "executive power should be part of the executive branch" as a facile argument because it does seem basic and a bit tautological, but it is still quite a strong point. It needs to be addressed rather than just identified and dismissed.
It is, and I've admitted as much in a subsequent response (<https://news.ycombinator.com/item?id=48517524>). It was however poorly articulated and muddied by some irrelevant distractions.
I'm working on a top-level comment on that point as I write this, given that this particular subthread is dead and thus invisible to most visitors to HN. My response highlights what seem to me salient points about other instances of violation of separation of powers, and of the history of the copyright office.
Even people who believe the administrative state is constitutional rest that conclusion on the premise that "rulemaking" is merely the formalization of the exercise of enforcement discretion. But that means that rulemaking must be performed by the executive branch, because that is the branch charged with enforcement of the law.
DMCA rulemaking is actually an example of something that would probably be constitutional if the executive did it--even if administrative agencies in general are unconstitutional. The DMCA creates civil and criminal penalties, and calls for rulemaking to define exceptions to those penalties. Defining exceptions to civil and criminal liability falls squarely within executive enforcement discretion.
I don’t think it does. Discretion is fundamentally case by case. Drawing categorical lines is legislative.
It’s akin to the distinction between law and equity courts at common law.
Stepping back, both doctrines (non delegation, unitary executive) are fundamentally about the courts overstepping. If both houses of Congress pass a law creating an agency with a director that can only be fired for cause and the president signs it, the Supreme Court should stay out of it.
Enacting legislation is very difficult, the presumption of constitutionality should be taken more seriously.
That’s even worse. If that’s the case, Congress must adopt those exemptions by law. It can’t delegate lawmaking powers to its employees.
> Stepping back, both doctrines (non delegation, unitary executive) are fundamentally about the courts overstepping
Unless you toss out the concept of judicial review altogether, policing the structural rules of the constitution is exactly what the courts should be doing. The courts have no say about the merits of Congressional acts. But they should review whether Congress has allocated powers to various entities in a way that’s consistent with separation of powers.
That’s too high a level of generality. Sure police situations where the branches are at direct loggerheads.
But in this case we have a law passed by congress and signed by the president. There’s no need to step in, the ordinary political processes are more than sufficient. If the new President and congress doesn’t like what the last ones did they have the exact same tools at their disposal to undo it.
Well, probably in theory. I don't rate that on my top 50 issues I care about and haven't given the idea much thought. But having the legislative branch be responsible for the regulatory system does sound proper.
The US executive branch has very limited decision making bandwidth and it should really be reserved for matters of war and peace.
The Constitution doesn't say that Congress can have its employees (which is what the Copyright Office is) make legally binding rules. Congress can make laws, but only through a specific process involving votes in the House and Senate and the signature of the President.
As much as I'm inclined to disagree with your views on principle, that is actually a cogent and relevant point.
Your initial comment would have been far stronger if it had dropped the irrelevant ad hom I called out previously, and had clearly stated your concern with Congress both legislating and regulating copyright, through the Library of Congress.
This also makes the question of how the Library of Congress came to be empowered with executing and* regulating copyright of interest. You've failed to explore this history. I'm somewhat familiar with both copyright law and the history of the Library, though not as a lawyer, and not specifically on the history of copyright and the Library both being effectively an executive function of the Legislative.
That also makes me wonder what other cross-branch functional contradictions exist. One that comes to mind immediately are ALJs (administrative law judges), which operate under the Executive rather than Judiciary, with one notable area being immigration law. The Senate and House each have Seargents of Arms, a nominally executive law-enforcement role under the legislative.
And of course there's the question of the present Administration's view that not only is it a unitary executive, but apparently a unitary Legislative and Judiciary as well.
No surprise that you'd show up to shill for it.Your argument boils down to 'if it looks like an executive branch agency, then the Executive branch should have control over it' rather than accepting that Congress is free to set things up as it sees fit within the Constitutional constraints.
"Shilling" would require me to care about the policy, which I don't. The genius of the founders is that they realized that structure and power allocation was more important than policy, so that's what I'm commenting about.
On that point, Congress cannot "set things up as it sees fit." The constitution goes to great lengths to create a complex, three-branch system of government with specific powers allocated to each branch. Anytime Congress creates something new, it has to fit it into the three-branch model in a way that is consistent with the principles of that model. It's like a "pure" microkernel in computer science: there is a framework that dictates what goes in kernel space versus user space. Except with the constitution, the structural principles are legally binding. You can't delegate executive functions to mere employees of the legislative branch, just like in a pure microkernel you can't put the GUI into the kernel.
In this case, the DMCA creates civil and criminal liability. Creating exceptions for that is the exercise of a quintessential executive power--enforcement discretion. That power must be allocated to an executive-branch agency.
I specifically said 'within the Constitutional constraints.' For some reason you chose to ignore that and then launch into a superfluous lecture on the Constitution. You are pounding the table, counselor.
This isn’t an “opinion.” It’s how almost everyone thinks the constitution works, including people who think modern administrative agencies are permissible. They don’t deny the tripartite structure is binding; they think that executive agencies exercising quasi-judicial and quasi-legislative functions can be defended as really being an exercise of executive discretion.
Hypothetically, if Congress passed legislation saying "it looks like an executive branch agency, the Executive branch should have control over it" you'd consider that a generally reasonable position all else equal?
If you concede that it looks like an executive agency then it actually seems quite proper that the executive control it.
No. Congress can set up and modify different parts of the executive branch, but can also set up wholly independent agencies that are not parts of the executive branch. The current administration often argues (through legal filings or proxies) that such agencies are somehow illegitimate and the executive branch should have authority over everything. That idea isn't peculiar to this administration, they just seem to have gone all-in on 'unitary executive theory' because it provides arguments for consolidating as much power as possible in the office of the Presidency.
The current administration doesn't seem to be involved in this. This appears to be Congress, on paper, saying that the executive should control something that looks like an executive agency.
I can see how someone might disagree with that for various reasons (see the article) but in context "if it looks like an executive branch agency, then the Executive branch should have control over it" seems like a great argument and one that would probably carry in Congress, they have tended to put executive agencies under control of the executive in the past.
youd also have to consider that the executive branch isn't allowed to make decisions, so the copyright office couldnt actually do anything, unless congress specifically passed a law saying a certain work has or does not have copyright protections, and which specific protections.
I don't think you've at all addressed why moving anything there towards the executive is desirable, especially given the capriciousness of the current executive.
FYI: though EFF articles have individual named authors, they go through an extensive collective editing process. Every post will have had at least one domain-specific lawyer reviewer who signs off on it.
That is a rather narrow definition of checks and balances. The term can be applied to any group of organizations where each organization has power and interest to limit the power of the others.
The article is talking about a bill that restructures a body in the U.S. federal government. In that context, “checks and balances” has a specific, well-known meaning. It’s like writing an article about Fedora 42 and using the term “kernel.” In that context, readers expect the term to be used in a specific way.
