To put it a bit differently: Congress has not been able to pass substantial laws in decades. The executive branch has filled in by interpreting these laws very loosely in order to adapt to the changing situation and—importantly—to adapt to changing presidencies.
That last part is the single biggest problem with the administrative regime as it has stood hitherto: it means that almost everything that happens in the federal government can be completely undone based on the results of a single nationwide election that we have every four years. It means that every right, every process, every plan that interacts with the federal government in any way has a four-year shelf life.
Government by administrative rule is why no one is getting too excited about non-competes getting banned or non-solicitation agreements curtailed. It's why I'm nervous about the future of the IRS's free tax filing software. It's why there are whole industries built up around trying to keep up with the latest about-face that the executive branch has made.
The existing system of administrative rules absolutely sucks for stability. It sucks for anyone who gets used to a benefit only to have it stripped out with an administrative change. It sucks for anyone who's trying to plan anything out on a longer timetable than four years.
If this forces Congress to get their shit together and pass lasting laws that can't just be upended with the next presidential election or if it forces states to start taking on the role that the federal government has hitherto failed to fill then in the long run this ruling will be better for everyone. It's just going to be very uncomfortable for the next few decades as we sort it all out.
That last part is the single biggest problem with the administrative regime as it has stood hitherto: it means that almost everything that happens in the federal government can be completely undone based on the results of a single nationwide election that we have every four years. It means that every right, every process, every plan that interacts with the federal government in any way has a four-year shelf life.
Government by administrative rule is why no one is getting too excited about non-competes getting banned or non-solicitation agreements curtailed. It's why I'm nervous about the future of the IRS's free tax filing software. It's why there are whole industries built up around trying to keep up with the latest about-face that the executive branch has made.
The existing system of administrative rules absolutely sucks for stability. It sucks for anyone who gets used to a benefit only to have it stripped out with an administrative change. It sucks for anyone who's trying to plan anything out on a longer timetable than four years.
If this forces Congress to get their shit together and pass lasting laws that can't just be upended with the next presidential election or if it forces states to start taking on the role that the federal government has hitherto failed to fill then in the long run this ruling will be better for everyone. It's just going to be very uncomfortable for the next few decades as we sort it all out.