Comment by dredmorbius
2 days ago
The author, Joe Mullin, is a policy analyst:
<https://www.eff.org/about/staff/joe-mullin>.
He's been working in that capacity with the EFF since at least 2018: <https://www.eff.org/deeplinks/2018/02/ipr-process-saves-80-c...>.
Your further objections are ... facile.
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.
I suppose in that case you are wholly opposed to the regulatory system as legislative power should be part of the legislative branch?
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.
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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.
Except that's a bad summary of a bad argument. "Rulemaking" is what Congress is supposed to do.
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.
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