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"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.

by anigbrowl1 hours ago|

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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.

by avmich13 hours ago|

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Looks like an opinion. If structural principles are legally binding, we can remember other cases from other areas.

by rayiner6 hours ago|

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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.

by roenxi18 hours ago|

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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.

by anigbrowl17 hours ago|

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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.

by roenxi17 hours ago|

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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.

by avmich13 hours ago|

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An argument against could refer to established practices of limiting power of executive branch in particular...

by 8note17 hours ago|

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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.

no more major questions doctrine