Michael Seltzer

“The nature of news is likely to distort people’s view of the world because of a mental bug that the psychologists Amos Tversky and Daniel Kahneman called the Availability heuristic: people estimate the probability of an event or the frequency of a kind of thing by the ease with which instances come to mind.11”
― Steven Pinker, Enlightenment Now: The Case for Reason, Science, Humanism, and Progress

“Some specialized types of administrative legislation require further attention—for example, determinations that make law. These determinations echo the old determinations of facts, in which an executive officer determined a factual question that was a condition of a statute’s application. Rather than being exercises of mere discernment or judgment, however, the newer style determinations often include overt exercises of lawmaking will. Such determinations arise under statutes that leave plenty of room for lawmaking. For example, the administrator of the Environmental Protection Agency is required to specify the application of the EPA’s ambient air quality standards by publishing a list of air pollutants that “in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”9 Although statutes of this sort speak in terms of determinations and judgments, they provide for determinations of questions so abstract or loosely stated that the agencies inevitably must engage in policy choices—in legislative will rather than mere judgment. As put by Justice Thurgood Marshall in a 1970 dissent, “the factual issues with which the Secretary [of Labor] must deal are frequently not subject to any definitive resolution,” for “[c]ausal connections and theoretical extrapolations may be uncertain,” and “when the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy, as well as empirically verifiable facts.” Thus, “[t]he decision to take action in conditions of uncertainty bears little resemblance to . . . empirically verifiable factual conclusions.”10 In such instances, factual determinations become exercises of lawmaking will.”
― Philip Hamburger, Is Administrative Law Unlawful?

“As history abundantly shows, Congress, for all its faults, has not been the unbroken parade of clowns and thieves and posturing windbags so often portrayed.”
― David McCullough, The American Spirit: Who We Are and What We Stand For

“Executive power thus could be exercised adjacent to legislation without actually trespassing on legislative power. The executive, for example, could make regulations and interpretations that merely directed executive officers and nonsubjects and could make determinations that merely discerned facts or the duties of subjects. Although these executive acts came close to legislation, they generally did not bind members of the public, and they therefore were not legislative. As a result, early executive regulations, interpretations, and determinations are not precedents for binding administrative legislation. On the contrary, they show the difference between lawful executive action and unlawful administrative lawmaking, and they thereby reveal that the one is not threatened by the argument against the other.”
― Philip Hamburger, Is Administrative Law Unlawful?