In the UK there is substantial use of secondary legislation. This is where Parliament authorises someone else to make laws on its behalf in some context. These powers delegated by Parliament are usually mundane but can be extreme and there's no limit to what powers Parliament can delegate. Since politicians are lazy they tend to use secondary legislation all the time. This encourages a culture of legislative sloppiness.

While the UK courts have given themselves the power to perform judicial review, there is no constitutional basis for this review and so the courts are reluctant to step on Parliament's toes because if they go too far they risk Parliament deciding that it doesn't like the courts' interference and removing their authority. This isn't a hypothetical and the courts have at times resorted to some crazy mental gymnastics to evade Parliament's attempts to prevent judicial review.

The US has a similar concept that enables federal agencies to make regulations on Congress's behalf but it's much more limited in scope due to the separation of powers and more solid position of the US Supreme Court.

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arjie 2 days ago | parent [-]

I believe the analogous concept is Chevron deference here in the US. It must be a relatively easy optimization to make to reduce legislative load considering it arises so often. Interesting.

One funny thing in California that is relevant is lane splitting. It is legal but guidelines are decided on by the CHP (state police). In practice, this means they have discretion to pull you over.

I must imagine this is like the creation of Shadow IT in organizations. In the past, when you made it hard to get a server or whatever, you’d end up with your org building their software somewhere else where IT can’t see it.

This must be the legal innovation that matches that: if law is hard to pass, shove a bunch of things off into Shadow Legislative which can then change rules on a whim.

It’s essentially a mechanism to re-enable rapid decision making in a sclerotic system. So perhaps the US using it less than the Old World is simply an artifact of age (though extant nations vary, the legal traditions of the Old World seem to have endured) and in time we will see it dominate the US as well.

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vikramkr 2 days ago | parent [-]

Cheveron deference is no longer active unfortunately

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arjie 2 days ago | parent [-]

Considering the specific topic, I'm afraid we land on opposite sides here since I prefer clear rules made by the legislature and so Chevron deference inactivity is fortunate rather than unfortunate.

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vikramkr 2 days ago | parent [-]

Whether or not the specific policy is good my preference is that changes to policy that have been in force for decades happen based on legislation and not the whims of 9 unelected people. We didn't get clear rules made my legislature, we lost an escape valve that allowed our regulatory apparatus to function while the gerontocracy on capital hill spun their wheels and left everything even murkier than it was before.

	▲	arjie 2 days ago \| parent [-]
		Chevron Deference was in force for decades but it was based entirely on[0] "the whims of 9 unelected people". The entire doctrine rests, like the present use of the Commerce Clause, on the Supreme Court choosing some particular interpretation. The nature of such things is that they're arbitrarily disputable and revocable[1]. It's somewhat unconvincing to me, and likely many others, that rules with force should be instantaneously created but cannot be instantaneously revoked. I think the two go together. If deference is congressional intent, congress can explicitly delegate to an agency. If Chevron Deference is congressional intent, congress can explicitly set that to be the default. 0: to use the terms you use, and not because I agree 1: as perhaps the current understanding of the Commerce Clause should as well