Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
Just like congress can legislate abortion laws rather than leaving it to judicial precedence.
Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
>Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
It would literally be impossible for congress to make a law covering every single nuance agencies are tasked with. This Supreme Court knows it. This is nothing more than deregulation on a scale not seen in modern American history. When you can’t find clean drinking water in 30 years, this will be why.
This case is about whose interpretation gets to fill in the gaps.
The statute (APA) requires courts to form an independent judgment about the gaps.
The Chevron doctrine required courts in certain cases to set this judgment aside in favor of an agency’s judgment—-basically on the basis that the agencies are closer to the problems and know better.
This setting aside may be the better outcome, however it is not explicitly specified in the statute (APA).
Ultimately, if Congress wants this to be the case, they /can/ amend the statute (APA), effectively enshrining the Chevron doctrine.
At the end of the day, the court’s decision here rests on statutory interpretation (not constitutional doctrine) so Congress could change the outcome by amending the statute (APA) to explicitly codify Chevron. This would be achieved with its ordinary legislative power (Article 1 Section 7 of the Constitution).
The court’s decision does effectively put the ball back in Congress’ court.
> It would literally be impossible for congress to make a law covering every single nuance agencies are tasked with.
What does that even mean? Supposedly these agencies already know what they're tasked with, no? If not... well I mean that's straight up irresponsible.
The other part of this I don't get is that people have been complaining about the "Revolving Door" problem in these agencies for a long time now. They're not sacred, and further we know they're not sacred because we've been complaining about their corruption. So why pretend they're sacred now? Why are there no solutions?
The problem with a lot of the called "progressives" is that they've adhered to a different kind of conservatism, where while the ideals are progressive, every single instance of actually implementing those ideals are conservative and play to old power structure.
> > It would literally be impossible for congress to make a law covering every single nuance agencies are tasked with.
> What does that even mean? Supposedly these agencies already know what they're tasked with, no? If not... well I mean that's straight up irresponsible.
It means the supreme court just gutted the agencies ability to make and enforce regulations. The agencies have lots of experts who know what they're supposed to be regulating they just aren't allowed to do that in many cases now. Unless congress writes things explicitly into law you can expect legal challenges to just about any regulation the agencies try to put forward.
> The other part of this I don't get is that people have been complaining about the "Revolving Door" problem in these agencies for a long time now. They're not sacred, and further we know they're not sacred because we've been complaining about their corruption. So why pretend they're sacred now?
Why do you think these two issues are opposed? The answer to weak and lax regulation isn't to remove the ability to regulate.
> Why are there no solutions?
What solutions are you proposing? Do you think your solutions have any chance of getting anywhere in the current political climate? Who benefits from the status quo and how much effort will they put in to block a solution?
This is the typical response to demanding actual action. It's a litany of excuses that both decries ineptitude and at the same time expresses satisfaction with it. It's ridiculous.
Ultimately I hope everyone that shares this sentiment really tries to introspect, read what they write/say, and see how deeply flawed the arguments are. It directly leads to strategic blunders.
In all honesty what does it really take for people to see the reality of their situation?
The left no longer has any will whatsoever, no courage, no real "revolutionary" spirit at all. It is decrepit, meek, and unwilling to change because it's paralyzed by fear (and that's being generous). It has no real political positions that people are demanding, because those political positions are in direct opposition to the majority of the players within the party that claims to represent progressives/left. It doesn't. It's a Conservative Party that has progressive talking points.
That is not how you run anything. That's not how you run politics, that's not even how you live a life. Don't let fear of failure mean complete inaction.
Taking risks is absolutely paramount, otherwise those at the margins willing to take risks, will eventually win out.
It’s worth pointing out the irony of this position, which is that liberals decried Chevron at the time it was decided because it required deferring to a narrow interpretation of the Clean Air Act by the Reagan EPA. Progressive organizations are always suing the EPA, because regulatory agencies are inherently centrist and resist change in either direction.
What this decision means is that Sierra Club, NRDC, etc., can now litigate in the Ninth Circuit and push for more favorable interpretations of environmental laws. And the next Republican administration can’t take that away, the way they could under Chevron, which allowed agencies to change their interpretation of the same law for no reason.
> What does that even mean? Supposedly these agencies already know what they're tasked with, no? If not... well I mean that's straight up irresponsible.
It's unrealistic to expect agencies to implement flawless regulations, especially when they're often underfunded. Complex situations will always have loopholes, but letting corporations exploit them freely doesn't benefit society.
Sure, agency overreach can be a problem, but in this case, I think the lack of regulation is more concerning.
> The problem with a lot of the called "progressives" is that they've adhered to a different kind of conservatism, where while the ideals are progressive, every single instance of actually implementing those ideals are conservative and play to old power structure.
I agree with your point about the conservative/progressive labels. People's views are nuanced - they might want to maintain the status quo on some issues, push for progressive change on others, or even revert to past practices. It's not black and white, even though we feel that way cause our society is getting more polarized.
I don’t think OP said that agencies have to make flawless regulations. They said that congress can literally make the Chevron Doctrine law. Giving agencies the power that they had before this ruling
Generally speaking they are considered "unelectable" and thus mostly exert influence indirectly if at all. Especially in the United States, even many "progressive" causes that have become relatively mainstream (in terms of popular support) are viewed by most people as having very little actual political representation due to the two-party system, and this has been well-understood by most people who call themselves progressives for several decades.
> Supposedly these agencies already know what they're tasked with, no?
I don't even see why such a law would have to name any agency. It could be a generic, "yes Supreme Court we do intend to let the executive fill in the blank in the law through regulations - that's why we call them regulations".
Even if that failed (perhaps on constitutional grounds), they could periodically accept agency regulation revisions and pass them into law.
Overruling Chevron doesn't require Congress to make laws covering every nuance. It just changes who resolves ambiguities in the laws. The irony of your comment is that federal clean-water legislation dates to 1948. The governing precedent at the time was Skidmore v. Swift, under which courts deferred to agency interpretations of statutes tot he extent the court found them persuasive. That regime functioned just fine for 40 years before Chevron changed the law.
Chevron, of course, was a case where the Reagan EPA interpreted the word "source" in the Clean Air Act to refer to an entire plant, rather than a distinct pollution source. The D.C. Circuit, in a decision written by Ruth Bader Ginsberg, disagreed with the EPA's interpretation of the law. The Supreme Court reversed, holding that the EPA was empowered to resolve such ambiguities in the text of the statutes.
Why stop at drinking water? If it's not codified in legislation, it will now be fair game for corporate America to exploit.
Up until now, companies had to cannibalize their customers when they could no longer find legal ways to grow. This will be enshittification like we've never seen. Instead of cannibalizing their customers, corporations will be able to cannibalize and exploit everything else that isn't explicitly nailed down in legislation.
In essence, this is likely the next Citizens United: another massive power grab for corporate America, the richest, at the expense of the people who populate the country.
> When you can’t find clean drinking water in 30 years, this will be why.
If you can find clean water in 30 years, it may be because reasonable judges were not required to defer to the environmental science of the Trump EPA. Chevron was imposed in the first place to help the Reagan EPA narrow environmental regulations.
In any case the vast majority of judges will probably keep deferring to the regulators in most cases. They aren't forbidden to, they're just no longer required to.
The court decided this on statutory grounds because that's what this court likes to do: base decisions on the narrowest grounds possible. But it mentioned Marbury quite prominently and it's pretty clear that the court will not sustain a law that codifies Chevron.
I suppose Congress could use its power under Article III’s Exceptions Clause to strip the federal courts (including the Supreme Court) of jurisdiction to hear cases challenging an agency’s adherence to its enabling statute. Courts would still always be able to hear constitutional challenges, of course.
And wouldn't this court still take this kind of challenge on constitutional grounds? That congress has no power to give legislative authority to an executive agency?
I assume so, as they should, since the constitution forbids it. This was the whole point of the separation of powers.
If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.
You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the court these powers in the first place.
What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.
The problem with interpreting the Constitution is that a lot of things are left unsaid or undefined. There is a wealth of writing outside the Constitution that helps clarify what was intended when the text of the Constitution is ambiguous, such as the Federalist Papers.
Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants.
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Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.
Alito said "[the Constitution] means what people would have understood it to mean at the time it was written." One can certainly accuse Alito of cynically ascribing modern Republican party politics to the framers, but I don't see a "smoking gun" here.
To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter.
Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."
Under this court's approach the interpretations of the constitution from around the time of adoption of it count as strong evidence for its meaning today. So this approach would not work for you.
Any power not explicitly granted the Federal government in the Constitution devolves to individual states, so each state would have the power to decide constitutionality as a matter of state law.
If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court.
Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.
> You know, maybe it's time to overturn Marbury v. Madison
You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?”
Conservatives will 100% take you up on overturning Marbury.
Unless the world turns to 1s and 0's, execution of a law will always in part depend on interpretation of the law by the executor. To pretend otherwise is to mistake ideals for reality.
Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality.
Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.
If congress doesn't like how federal agencies implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.
The whole point of courts is to be the place of judgment as to whether a law is actually being violated or not.
Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“
The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.
And I suppose that soldiers who are in the middle of combat shouldn't be able to choose where to point their rifles without congressional approval? Do we need a bill for each new weapons system, since their procurement and use won't have been specifically called for in statute? Etc.
Congress already decides how much to spend and on what weapons systems for the various branches of the military.
Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.”
In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.
> Congress already decides how much to spend and on what weapons systems for the various branches of the military.
Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program.
> The authority to command the armed forces is directly under the executive
The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.
My argument is that we have been lax with the separation of powers. Congress is required to declare war before the President can direct the armed forces into combat, for example. This has failed recently. Congress also must not declare a permanent generic war, and then leave it up the the executive branch free to do whatever it wants with the military. Or, if they declare war on French Guiana, that doesn’t give the president freedom to attack Georgia.
The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.
You're completely right; my thought experiment was half-baked. A challenge to an agency's use of delegated power is necessarily a constitutional challenge. So, unless Marbury were overturned, this wouldn't fly.
You do realize the dems doing something and the reps following up with the same thing, doesn't somehow stop the republicans for just doing it themselves lol,
I'll never understand this bullshit stance "democrats cant do it because then maybe republicans will do it later" ... i mean how does not doing it ever stop republicans from doing it anyway later lol... this stance is what has fucked democrats for decades, this obliviousness that republicans have no issue jumping directly to extremes, like saying ROE was settled law and then overturning it in a fucking massive partisan ruling.
Overruling Roe wasn’t “extreme,” it was literally the lowest hanging fruit on the tree. At the time it was decided, a prominent law professor noted that it’s “not constitutional law and gives almost no sense of an obligation to try to be.” It was the left’s version of Lochner—a decision so irrational that by the end liberals could only defend it on the ground it was precedent.
On top of everything else, Roe was an aberration internationally. When Macron criticized the U.S. Supreme Court for overturning Roe, he got the French people to approve an amendment to add an abortion right to the French constitution. Of course, French courts wouldn’t just gin such a right into existence from thin air, because they’re not lawless. I don’t know if anyone picked up on the irony of that.
The real chumps are Republicans. They should appoint justices that will create the conservative version of the Warren Court. Adopt Democrats’ preferred “emanations from penumbras” standard for interpreting the constitution. I bet you can find some cool stuff in “emanations from penumbras” of the second amendment, the contract clause, etc.
It's so narrow that it's out of context. The APA does say "all matters of law" but it's in a longer sentence that makes it clear they mean a legal dispute. Roberts et al cram a huge shift of plenary powers through that pinhole. Regardless of what you think about the administrative state, no one can say with a straight face courts will do a good job of this. We don't even have enough judges to manage immigration and family law cases, and now we need people who are legal experts _and_ subject matter experts in all regulatory cases that come before them? I mean, we'll see what courts think after environmental rights groups file thousands of suits (as the majority seems to think they should be doing) after this.
Or I mean, a different outcome is that we get EPA court. Article III is very short and doesn't design the federal judiciary. Biden could pretty easily just make the EPA a court with lifetime appointments. What an own goal that would be haha.
sorry, can someone explain this to someone who gave up on the article at the first bullet point, nor had enough sleep (and so is too lazy to look up everything)
Long ago Congress passed laws delegating a lot of rulemaking authority to the executive branch, the idea being that Congresspersons and their staff aren't deep-knowledge experts in most fields, and a lot of detailed rulemaking is best left to non-partisan career government employees (which, however, are usually guided by partisan political appointees, unfortunately). This is potentially dicey where the constitution is concerned: one of the foundational principles of the US constitution is separation of powers, and giving the executive branch what is essentially legislative power is maybe not in line with that.
But Congress did it anyway, and the SCOTUS has over the years upheld it. There was a landmark court case involving Chevron (the oil company). SCOTUS ruled there saying that the executive branch agencies responsible for rulemaking are experts in their fields, and we should mostly defer to them when their position seems reasonable, and when Congress hasn't passed a law that contradicts what they want to do.
Marbury is a much older case, that made precedent the idea that courts have the ability to strike down laws that they believe violate the constitution.
The current conservative-leaning SCOTUS is skeptical of what conservatives call the "administrative state" (basically: rulemaking done by the executive branch). They seem to not be a big fan of "Chevron deference", and are fully willing to exercise their Marbury-affirmed power to strike down executive actions that they don't believe are constitutional, or don't believe directly stem from laws Congress has passed.
I think this misses an important distinction. The issue here isn't the extent to which Congress can delegate rule-making authority to executive agencies. Those bounds haven't been moved. The issue is how how much deference courts are to give agencies when deciding when an agency-made rule reasonably adheres to the purpose and function of a statute. In theory the degree of deference shouldn't matter--agencies' retain the same rule-making authority and flexibility as before--but as a matter of process it absolutely does.
SCOTUS invented the Chevron doctrine because it believed at the time courts were too quick to second-guess the logic behind agency rule making, and in doing so unnecessarily and improperly inserting themselves into technical debates as well as broader political debates. IOW, the court was primarily concerned with people using the courts to subvert executive prerogatives and electoral politics. The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.
Then and now, by moving the threshold for when courts can second-guess federal agencies, it's effectively altering the rights and responsibilities between Congress and the President, as well as between those two institutions and the electorate more broadly.
> The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.
That's very charitable. A less charitable view might be that their concern is that regulatory bodies and other executive agencies are standing in the way of personal and corporate profits, and that overturning Chevron means that the courts can now cripple the ability for federal agencies to function by overruling the reasonable interpretations of statute those agencies have been operating under all this time and instead limit them to only the most narrow interpretation of the law. Law that has, for decades now, been being written under the assumption that Chevron exists, and not with the expectation that an adversarial judge will try to undermine the intention of the laws being passed.
I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity. I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is, and next month or next election it could be something else entirely. In such cases I would absolutely want the courts to evaluate that ambiguity by treating both sides of the argument equally and weighing the law as it stands. So it seems like it should be the same when it comes to regulatory rule making as well. If the law is unclear, deferring to the enforcers of that law seems no different than deferring to the cops. The court system and the government as a whole is already institutionally biased towards the government, without any need for an explicit policy to prefer the government's side.
> I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity.
I doubt it. I think most people have some federal agency they aren't a huge fan of. Sure, the fact that Chevron helped to allow the EPA keep your air and water from being poisoned by greedy corporations who would do it in a second if it would make them more money helps to make it a more sympathetic cause, but it's not as if people aren't aware that the defense applied to every other agency too.
> I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is
That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.
It's not about deferring to the enforcers of that law. It's about deferring to the law first, and only imposing a narrower interpretation if the enforcers of that law were already out of line. It just means that agencies aren't limited to the most narrow interpretation of the law as written.
>That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.
There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.
Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties? I have no doubt they would say so, and absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable? Surely we should defer to them as they're the experts in their field right?
If the secret service started shutting down cell towers within a 10 mile radius of presidential rallies, well that's just common sense protection against remote explosives and well within their directive to protect the president right? They are the experts on this after all and have wide latitude to do what's necessary. No need for the courts to review that action or the laws surrounding it.
> Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties?....Surely we should defer to them as they're the experts in their field right?
It's a fantasy to think that this will mean state spying powers will be reduced.
> absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable?
The courts are! They always have been, even under Chevron. If at any point a judge thought that the FBI, ATF, DEA, NSA, or <insert three letter agency here> interpreted the law unreasonably, or extended their authority beyond what was allowed that judge had the power under Chevron to impose the court's own interpretation of the law on that agency.
The Chevron defense said that if the court agreed that an agency had an interpretation of an ambiguous law which was reasonable and permissible the court couldn't impose a more narrow standard on them. Because it's been overturned it now doesn't matter if the court thinks that what the agency was doing was reasonable and permissible, the court can inject it's own interpretation anyway.
Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it. That's it. Now that protection is gone and I promise that it's not going to make you more free or better off. It means that any and all of the rights and protections you have today thanks to federal agencies are at risk of going away as soon as a case goes in front of an activist judge
>It's a fantasy to think that this will mean state spying powers will be reduced.
Never said that it would, I said allowing enforcers to set the extent of their own powers is a bad idea.
>Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it.
Federal agencies (indeed any government agency) should always be subject to narrow interpretations of the law when the extent of their authority and powers are in question. If that interpretation is too narrow for Congress, then Congress needs to be more explicit about their intent. The law needs to be as clear as possible. Ambiguity is a flaw not a feature and the fact that ambiguities can lead to problems means we should make better law, not throw our hands in the air and let whoever's in charge this week decide what the policy is. If we want a massive federal agency to oversee something then the extent to which that agency is empowered and what that agency is empowered to do had better be explicitly spelled out.
To support what Autoexc is saying - this is effectively an argument about the theory on one side, and the practical reality of intentionally skewed judiciaries, a grid locked and obtuse congress - which in turn is driven by groups with a common cause.
The law, in most cases, is about the practical application of an ideal (the law) to reality (the case).
If things weren’t so lopsided and blatantly partisan, then yes, the theory would matter. It would probably be a prosaic and boring decision.
This court is not only engineered to lean heavily in one direction, it is also being fed cases based on that common agenda.
In addition - we cannot avoid ambiguities unless we have powers of foresight that make the entire governing edifice irrelevant.
No one could predict the capabilities or failures of this generation of LLMs for example. There is no better “law”, unless it is an act that gets updated on a near monthly or quarterly basis.
This is a timeline that a congress is not suited to manage. This is definitely something that an agency of some sort would.
Finally - Saying that bureaucrats and experts are biased, but to leave out the bias of the courts feels unfair.
> There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.
What’s more, these agencies—particularly the ATF—love to make up, out of whole cloth, completely new rules that are contrary to their own previously-expressed rules that have the effect of retroactively turning millions of law-abiding people into felons overnight.
I don't think people will appreciate it when they have to buy bottled water because all the aquifers and lakes are full of heavy metals from manufacturing upstream. It really is part of Project 2025 and has been in the works for a while now. If they don't like the bureaucracy, Congress has full powers to remove it there was no reason to gut all regulation so they can be tied up indefinitely in court and our courts are overwhelmed by challenges so that every decision takes 15 years to work its way through court.
> I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity.
In the original context of the 1984 Chevron case, environmentalists were arguing that the EPA had redefined "source" in an overly narrow way, much narrower than Congress had originally intended in passing the Clean Air Act, thereby enabling companies to emit more air pollution. The Chevron decision was seen at the time as a loss for environmentalists and win for the corporate sector and conservatives.
It's funny how the tables have turned – a decision which was originally praised by conservatives and condemned by liberals and environmentalists, eventually ends being condemned and overturned by conservatives, while being defended by liberals and environmentalists. Both the 1984 case and the 2024 case had a conservative majority, and were perceived at the time as furthering conservative political objectives.
I think what's really happened: in 1984, the federal judiciary was widely perceived as liberal-dominated, while the federal bureaucracy was seen as relatively more conservative, so liberals wanted the judiciary to be more powerful than the bureaucracy, conservatives wanted the opposite. In 2024, the situation is reversed: now the federal judiciary is perceived as being increasingly dominated by conservatives, while the federal bureaucracy is viewed as being more liberal, so now liberals want to defend the bureaucracy's power against judicial encroachment.
It looks to me like the only thing that's constant here – on both sides – is "the ends justify the means".
That’s a good example, but it goes even deeper than that. Chevron itself was a case that reversed a judgment in favor of an environmental organization written by Ruth Bader Ginsberg (when she was a D.C. Circuit judge), and siding with the Reagan EPA.
I'd just love to see them keep this same energy when dealing with the actual police and end qualified immunity. They won't. But it would be the right thing to do.
That's very charitable. A less charitable view might be that corrupt, know-nothing political friends use their ability to "interpret a gap" to make sweeping legislation with no accountability and in-house courts to adjudicate on their behalf, then use selective enforcement for de facto bribery in a revolving door of public-private scheme to extort the productive sector of our country, and give to the useless rent seeking politicians and their cronies.
Wouldn’t a system where you need bribe a large number of bureaucrats (who might have differing opinions and priorities) still be more robust than one where you just need to bribe a couple of corrupt Supreme Court justices like now?
> the useless rent seeking politicians and their cronies.
Courts are largely politically appointed. Why are judges necessarily more trustworthy in your opinion?
I was just bootlicking the Fox news narrative as hard as you are bootlicking the NYT. It was parody.
My real opinion is that no one is more trustworthy than the other. They're all people. But there are constitutionally delegated duties given to each branch that we've gradually eased over the past century, and between Jarkesy disallowing in-house courts for certain types of crime, the resurgence of the non-delegation doctrine and now the overruling of Chevron, SCOTUS thinks this delegation is not optional. I personally agree with them hesitantly, but predicting the future is hard, and there are some actions they take where I think the consequences are obvious, but this is not one of them, and I would have slept no more or less soundly if this case had come out the other way.
If the court had a 50-50 split, then yes, your argument would carry merit. We can all disagree with court rulings, especially if we have experience in a domain.
Our opinions can be right or wrong. However I think everyone can agree that a skewed court will never be trusted when its majority votes along party lines.
What is a “skewed court?” We had a Democrat-majority court for decades after FDR won a series of key elections. We now have a Republican majority court because of Reagan, Bush, and Trump. Biden’s recent implosion will likely cement the 6-3 majority for some time.
Democrat-appointees made huge changes to the constitution when we had a “skewed” court going the other way. I think those decisions were terribly wrong as a legal matter, but what’s dangerous is the effort to make it seem like they were illegitimate through the rhetoric that’s being spewed these days.
This is an old comment, but I thought it was worth addressing since it brings up the point of rhetoric.
The current crop of judges is absurdly partisan. This is no ordinary position, these judges are not regular Joes. Their opinions, their intellect, their fairness and open mindedness to address a case on its merits, is what their entire life time appointment is about. Being a Judge.
Read Alito's dissenting opinion on Murthy. He depicts (not interpret) the whole case as government censorship.
Mind you, this is the case where the government would have had to invent time travel to be culpable.
> Plus, Facebook started targeting her content before almost all of its communications with the White House and the CDC,
page 3- https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf
It seems that congress is much quicker and more willing to correct overreach by the executive branch through legislation compared to overreach by the judiciary — especially at the Supreme Court level.
It's worth noting is that at the time the EPA's position was _in favor_ of Chevron, while the agencies right now tend to be a lot less corporation-friendly (hence the need to overturn the precedent, some say).
Also worth noting is that the head of the EPA at the time was Anne Gorsuch, mother of Justice Neil Gorsuch.
This is completely wrong. Chevron is about the Clean Air Act, which required Chevron (the oil company) to get a permit for every pollution “source.” The Reagan EPA interpreted the word “source” in the statute to mean an entire plant, not an individual pollution source (like a smokestack). It was sued by the Natural Resources Defense Council, who argued that the law requires Chevron to get a permit for every pollution source.
The D.C. Circuit, in an opinion by Ruth Bader Ginsberg, sided with NRDC. But the Supreme Court reversed, ruling in favor of the EPA (and Chevron). The Supreme Court said that the court had to defer to the EPAs interpretation of the word “source,” even if the court thought that wasn’t the best interpretation of the law.
> Long ago Congress passed laws delegating a lot of rulemaking authority to the executive branch […]
By "long ago" the delegation was first mentioned (AFAICT) in 1825:
> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.
Isn't the only reason the Supreme Court would not sustain a law is because it is unconstitutional? And otherwise their only role is to interpret laws? At least that's the way it is supposed to be AFAIK.
No, the court can also say that two laws are inconsistent. In this case, there is a judicial ruling (Chevron) that has stood for a while, that they are saying is inconsistent with a law (the APA). The constitution is not in this ruling at all. Generally, laws override judicial rulings unless the constitution is in question.
But that’s not really how it works, is it? The court is more interested in pushing an agenda than playing its role in balancing the other branches of government. It’s obvious in the way they defer to precedent when it suits them and throw it aside when it does not.
They didn't just mention it. The explained that it means that they (the courts) interpret the law. That they decided Raimondo on statutory grounds (specifically the Administrative Procedures Act) doesn't mean that they wouldn't have decided it on constitutional grounds if statutory grounds weren't available. Basically they've left the door open for Congress to fine-tune things a bit, but if they try to enshrine Chevron in law then it's pretty clear that the majority on the court already doesn't think much of it.
The court will be very zealous of its power (from 1803, in Marbury v. Madison) to decide that laws are unconstitutional, so yes, if the court things a statutory codification of Chevron is unconstitutional, they will so rule.
However it's also very unlikely that Congress will pass Chevron into law, and the text they might write might be narrow enough to pass constitutional muster, so until then this is a purely academic question.
Congress can define the court's jurisdiction, but that's a very broad tool. By and large Congress doesn't do that. I suspect that it would be more practical to pack the court.
Why is the potentially decades-long process of packing the court easier than inserting a section in a bill that says “btw, judges can’t review this specific law because it’s specifically written to revoke your recent power grab.”
I don’t recall the collapse of the republic or the constitutional system, just decades of growing prosperity and rising standards of living culminating in the 1950s, the era everyone is desperate to return to.
For economic reasons unrelated to what was going on in the legal system. But the mid-20th century also saw a gutting of the constitutional system the founders had created, and replacement thereof with an unelected administrative state.
You might want to read the room. Not just in the US, but across Europe as well, people are angry about their democracy having been stripped from them, and rule by unelected, unaccountable experts.
Anti-intellectualism is nothing new, we’ve always dealt with spasms of it and the current one will pass. When you say unelected experts what you’re referring to are non-crony public servants who aren’t subject to the spoils system of party politics. No modern democracy could function without them. Extremists hate them because they offer a competent buffer against the chaos they hope to unleash.
It's not about "anti-intellectualism." I think cognitive elites, of which expert bureaucrats are a part, are critical to running society. But they have a moral obligation to stay in their lane. Elites must use their capabilities to do what the public wants them to do. Both in the U.S. and Europe, they have not been doing that, but instead have been abusing their authority to impose their own ideologies.
Consider the 2016 "Resistance" by federal employees to the election of Donald Trump. The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss. Instead, they publicly and vocally declared their insubordination, both to the President and the public who elected him. Likewise, during the 2020 George Floyd riots, you saw public health experts allow their moral ideology to affect their expert recommendations--treating religious gatherings as somehow being different from social justice gatherings.
My belief is that these things directly led to the debacle of the pandemic, when people refused to trust experts on vaccination--despite Trump telling them to take the vaccine. My dad spent his life working as a public health expert in the third world, and what happened was, while disappointing, not a surprise to him. A huge part of public health work is getting people to trust you. And you must earn that trust by putting the job first. If you go into a village in Bangladesh and people don't want to be treated by a woman doctor, you provide them a male doctor. You don't chastise them for their "sexism." My dad actually worked for a Planned Parenthood affiliate in Bangladesh. At least back in the 1980s, they were providing family planning services consistent with local beliefs, and not trying to impose western ideals on the public--something that would have swiftly destroyed trust.
Most people who aren't that smart understand that and are deferential to their betters. But they also have an intuitive and accurate sense of what's an exercise of expertise, and what's a moral or political judgment. And when experts step out of their lane, they destroy the trust that's critical to doing their jobs.
> Elites must use their capabilities to do what the public wants them to do.
It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job. Public servants get their orders from their managers who are appointed by public officials. That’s their “lane.”
People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.
> It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job.
"Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government. They don't get to use their position to push back on the government because they think they should be driving somewhere else. And they should be fired if they do so.
> People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.
That is exactly what it should mean. If the people elect someone who promises radical change, a functioning democracy should be responsive to that! Resisting the policy agenda of the elected government is not a legitimate function of the bureaucracy. And it's absolutely a "bug," not a "feature." I can't think of any constitutional system that envisions the bureaucracy serving as a check on the policy choices of the elected branches of government. Certainly, there is no such concept in the U.S. Constitution, which lays out a comprehensive system of checks-and-balances.
What you're saying is exactly the anti-democratic power grab I'm talking about. It's experts thinking that their education somehow validates their policy preferences, and that the point of elections is simply to provide some sort of signal to the permanent bureaucracy to evaluate according to their independent judgment and discretion.
I can’t remember at the moment precisely which old British Lord said this in the context of Indian independence but the quote goes something along the lines of democracy is only going to last if the program voted in isn’t a complete revolution, there has to be some continuity reflecting the demos, and expecting a complete overturning and revolution by votes is going to destroy the system.
Of course Government of India Act was not a great system at any rate and you’re probably not a fan of the UK one either.
I mean the belief that it was best for educated British people to run India and impose their superior morals on India is a pretty good analogy for how the Ivy League educated bureaucratic class views the rest of America.
Indeed, I think it’s no coincidence that all those Brahmin elites that did well for themselves under colonial rule come over here and become natural Democrats.
> "Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government.
Ye… You have never seen an incompetent manager that will draw a route of a bus through a brick wall, and yell over the phone ‘why haven’t you driven through it?’
More broadly, do you hate the idea of employees having opinions and their own initiative? Is your boss tells you to set the company building on fire, will you do it? If you are told to drive over a child, will you do it?
I feel like you are being an ideologue and you like how things work in your head, without realising that if everyone did exactly what their boss tells them, society would collapse within a week
> More broadly, do you hate the idea of employees having opinions and their own initiative?
I hate the idea of people working for the federal government resisting the policies it’s their job to implement, because they have policy disagreements with the duly-elected leaders.
There are ample policies and procedures for dealing with insubordination. Was there something in particular with the “resistance” you can point out? I never heard of any it amounting to anything other than some occasional clickbait.
> The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss.
You mean a new boss put in place by an Electoral college, which didn't represent the majority of the people?
Majority of the country didn't vote for the 2016 President
You mean the guy who won the only contest that anyone was trying to win? You can complain that San Francisco would have won the Super Bowl if field goals were only two points but we have no idea who would have won under different rules.
Trump won the vote that determines who represents the people in the federal government. There is no separate election where the candidates campaign to win the most absolute number of votes. You can add up the state-by-state vote totals, but that’s a meaningless number because nobody is trying to win that.
Fun fact: if you want to talk about different ways in which we don’t select the executive, it’s interesting you overlook the most common one in advanced democracies: the number of party votes or seats in the legislature. Trump would have won that too, both in seats and by 2 million total votes.
The general issue with your comment is _just_ the president was donald trump.
He's not the governor of a single state so when those states issues stay at home orders conflicting with his direction that's just federalism in action. And then you need an act of congress to override the states like with slavery.
Marbury itself has no basis in the constitution. Congress can gut the powers the courts have carved out any time, what I’m suggesting is that it can be done with a surgical strike rather than going nuclear.
Ironically Marbury was about Congress gutting the courts. Jefferson's Congress canceled 18 federal courts, leaving 18 judges (appointed by Adams at the end of his term, and who had not yet been seated) with no court to sit in! The case was a suit to force Jefferson's Secretary of State (Madison!) to give those new judges their commission. Marbury is a fairly complex case.
Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.
This court has gone a long way to say that vibes aren’t a sufficient level of clarity anymore, so it’s only fair that this can work against the court’s allocation of power as much as it has worked for it.
They don't believe it's unconstitutional. They believe it conflicts with the Administrative Procedure Act from 1946. Something that they apparently believe the unanimous decision in Chevron from 1984 got wrong.
I know little about US law, but I thought one of the priciples of common law is that once a precedent is set then it is set forever unless changed by statute? Allowing a court to change precedents undermines the whole concept of common law doesn't it?
This is stare (“starry”) decisis, and while it is absolute vertically, it is less so horizontally. Basically the court can decide that it got it wrong before, but the 9th Circuit is bound by a higher court’s precedents (SCOTUS in this case): https://www.law.cornell.edu/wex/stare_decisis
With the caveat that the appeals courts set lots of precedents where the cases never reach the Supreme Court, in which cases the appeals courts are as bound by their precedents as the SCOTUS is by its precedents (i.e., not really).
Technically, SCOTUS, as the highest court, isn't beholden to anyone's precedent. This year's SCOTUS is just as legitimate as last year's, so they always have the power to overturn past decisions. Lower courts have to follow what higher courts decide, but SCOTUS has no higher authority. And sometimes, like in Brown vs. Board of Ed (which ended legal segregation), it's a very good thing for the Court to overturn its past decisions.
But in practice, to non-lunatics, stare decisis (the legal principle that says not to overturn, or even consider, topics that have already been decided in the past without an extremely good reason) is an incredibly important prior to bring into any discussion. If the court actually uses its power to completely rewrite the rules of how government works on a whim - and let's be clear, that's what this decision does - then there's no way for anyone to ever make a plan. Nothing is stable.
Unfortunately, at least 5/9 of the current Supreme Court are either lunatics or blatantly corrupt. Chevron was decided unanimously for a reason. There is no way to administer a modern state without that concept - which is why right-wing extremists are so happy to see it gone, because they don't want the state administered.
i don't remember my government class exactly but i think the purpose of the us supreme court is to determine if a law is constitutional or not. I'm not sure if it can explicitly strike down a law but declaring it unconstitutional would be effectively the same.
>i think the purpose of the us supreme court is to determine if a law is constitutional or not.
Interestingly, the ability to declare a law un/constitutional is not an enumerated power given to the court by the Constitution. The Supreme Court declared that power for itself in Marbury v. Madison and people have just went with it ever since.
It’s not really a separate power. Courts express their understanding of the law. Some laws are statutes, some are the constitution itself. If there are conflicts then the court will express its opinion on which is authoritative. What the Executive and Legislative branches choose to do after the fact are things those branches may do.
It becomes a somewhat circular argument. Through their ruling of Marbury v. Madison, the court declared the Constitution as law. Article 3 of the Constitution gives the court judicial power to interpret law. Therefore, by their own ruling they gave themselves the power to decide what is (or isn’t) constitutional.
Which seems like an enormous power grab on the one hand but I can’t really see any other way for them to be a check on the other branches without that power. There needs to be some legal basis to declare a law invalid. The Constitution (with all of its vagueness at times) seems like the better way than simply vibes.
The Supremacy Clause lists the supreme laws in order: constitution, federal statutes, treaties. If there is a conflict among them then it's natural for the courts to resolve that conflict by deferring to the more supreme item on that list, thus if a law violates -say- the right to due process as enshrined in the constitution then that law must be invalid and the courts must rule as much.
Marbury is an utterly natural consequence of the Supremacy Clause and Article III (and the context of common law).
> Through their ruling of Marbury v. Madison, the court declared the Constitution as law.
The constitution declares itself as supreme law. See the Supremacy Clause:
This Constitution, and the Laws of
the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be
made, under the Authority of the
United States, shall be the supreme
Law of the Land; and the Judges in
every State shall be bound thereby,
any thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.
The order in which the supreme laws are given is: constitution, statutes, treaties.
> The court decided this on statutory grounds because that's what this court likes to do: base decisions on the narrowest grounds possible. But it mentioned Marbury quite prominently and it's pretty clear that the court will not sustain a law that codifies Chevron.
I'm not convinced you are right. If you look at the conservatives on the current SCOTUS, they aren't monolithic. Thomas and Alito are hard conservatives (with Thomas the hardest), [0] and I'd expect they'd likely do as you suggest and strike down any statutory attempt to reintroduce Chevron as unconstitutional.
But I'm not sure Roberts would be willing to go along with that. As the most moderate of the conservative justices, he was comfortable striking down Chevron on statutory interpretation grounds, repeating that on constitutional grounds might be going too far for him. And he only has to convince one other conservative to go along with him, and with the support of the liberals he'd have a majority. Kavanaugh is only modestly more conservative than Roberts, so he'd be the most likely candidate. I think, if Roberts was to overturn on constitutional grounds a statutory attempt to reinstate Chevron, he'd prefer to do it in the narrowest way he could – striking down that particular attempt, but leaving open the possibility that Congress could have another go at it.
The other thing you have to keep in mind, is ultimately the justices are individuals with their own idiosyncrasies, and they don't always vote the way you'd predict if ideological leanings were the only factor driving their decisions. A good example of that was the Fischer v United States case [1] from the other day, in which SCOTUS sided with January 6 defendants: Jackson joined the conservatives in that, whereas Barrett joined the liberals in dissenting.
I suppose Jackson siding with the conservatives was not entirely surprising; as the most moderate of the liberal justices, she is the most likely to join the conservatives in any case. Barrett's dissent was somewhat more surprising, given she's not the most moderate conservative, with Roberts and Kavanaugh siding with the liberals more often than she does.
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
Congress can't actually legislate anything while it's held hostage by obstructionists and there's effectively zero chance that a bunch of republicans who want to dismantle the already inadequate regulations that keep entire communities from being poisoned will vote to remove their power to do exactly that through the supreme court.
I don't think there are many Americans who prefer a deadlocked and dysfunctional congress that is incapable of doing their jobs. We have a lot of things that need doing in this country which can't get done when obstructionists stand in the way.
There will always be some number of petty people who don't care what the costs are as long as "their team" isn't allowing the "other team" a win, and those who don't want the federal government doing anything other than war, but when our government shuts down most American's aren't very happy about it. Most have a list of things they'd like their representatives in Washington to be doing for them, and they don't view the obstructionists acting like toddlers preventing those things from happening very favorably.
In the end, a partisan pissing match doesn't actually help the American people and our government should be working for us, not sitting on their hands doing nothing while the American people suffer and backslide. As long as election results are entirely divorced from approval ratings congress has zero incentive to work for the people though and they can get away with preventing the government from being functional/useful for anyone but themselves and the people stuffing their pockets.
> I don't there are many Americans who prefer a deadlocked and dysfunctional congress that is incapable of doing their jobs. We have a lot of things that need doing in this country which can't get done when obstructionists stand in the way.
I know a lot of them. And it's how the system was designed, by the way. Congress was supposed to generally be weak and deadlocked unless an overwhelming majority of people wanted something.
Congress was supposed to be composed of a bunch of people representing their constituents, not partisan hacks serving the interests of political parties.
I have spoken to my congressman and both of my senators before. It turns out you probably can, too, if you have something worthwhile to say. Political parties have existed forever.
The overwhelming majority of people do want a lot of things. Gerrymandering in the House and the fact that the Senate gives Wyoming and Vermont the same power as California and Texas prevents that.
>> Congress was supposed to generally be weak and deadlocked unless an overwhelming majority of people wanted something.
> The overwhelming majority of people do want a lot of things.
While the language is close these aren’t the same. Specifically the parent is saying that people need to want the same thing. Claiming that people want lots of things with no consideration of what they are or even how the things are done falls far short of the goal.
> the fact that the Senate gives Wyoming and Vermont the same power as California and Texas prevents that.
Have you considered that our founding documents/government was structured this way on purpose? It was a major incentive for encouraging small states such as Wyoming to join the union. Without this mechanism for giving smaller states an equal influence relative to other states many would not have joined the union.
> Have you considered that our founding documents/government was structured this way on purpose?
The senate was modeled on the house of lords and the expectation was that the country would be mostly ruled by the representatives in the lower house, with the senate handling special things like impeachment.
The senate disproportionately representing smaller states was a compromise necessary to get smaller states to ratify the constitution. Wyoming and Texas didn't exist. Senate rules that turn it into the place were legislation goes to die (like the filibuster) are rules created by the senate to give itself more power.
The Senate was always supposed to be part of passing laws. I'm not sure where you got the idea that the Senate would only handle special things. That's what the House of Lords does, but the roles are not supposed to be the same.
We might do well to consolidate some of the smaller and sparse states from time to time. Otherwise they may sell their souls for any kind of edge over the more populous ones.
If people in California and Texas want certain things then they still have a great deal of freedom to enact those laws at the state level. The federal government has only preempted state legislation in limited areas. For example, if Texas wanted to implement a single payer healthcare system within their state then they could just do it (at least for residents not covered by federal health plans). There's no need for federal laws covering every issue.
> Congress was supposed to generally be weak and deadlocked unless an overwhelming majority of people wanted something.
It was not. Rules that make congress "weak and deadlocked" are mostly not in the constitution. For instance, the filibuster is part of Senate rules and could be changed at any time.
Party-line votes and deadlock in the house are mostly driven by partisan politics and party discipline.
The constitution specifies a few things that require a super-majority (impeachment conviction, overturning a president's veto, and constitutional amendments). Everything else is supposed to be a majority vote of 535 independent representatives.
> I want X, you want not X. We both want Congress to "do its job", but what, exactly is that job?
To govern. That means compromise. Maybe we disagree on X and our representatives decide to do Y instead which doesn't full satisfy either of us. Maybe they pass X which I want while you don't, and in return they pass Z which you want while I don't.
It's not as if the idea of a congress that can work together is an impossible dream. The situation today is the exception and not the rule. For all the problems congress has had we're seeing historic levels of dysfunction and that shows in the total lack of productivity https://abcnews.go.com/Politics/118th-congress-track-become-...
The European Parliament was able to pass GDPR. Keep in mind the member states were blood enemies for centuries. If they can put aside their centuries long blood feuds to get sh*t done, Congress has no excuse.
> California has spent over $100bn to build 1600 ft of high speed rail over a decade. And it wasn't Republican obstructionists who caused that.
I'm not familiar with that specific situation. Was it taken to the federal courts and only allowed to happen because of Chevron?
> There are too many regulations.
I think many people cheering this ruling are just anti-regulation and they care a lot about that without thinking much about how this ruling will negatively impact their lives and the lives of their families.
I agree with you though. There really are too may regulations. That will probably always be true. As long as industry and corporations can write self-serving legislation and bribe people in congress to pass it, there will be regulations on the books that shouldn't be there. That said, regulation is the only reason you have safe electricity, clean air, and safe water (assuming you aren't one of the several millions of American's who currently don't have safe drinking water).
Regulations, like all laws, are just tools and they can be used to help improve our lives, preserve our health, promote the safety of the American people, and increase our freedoms or they can be used to stifle competition, funnel tax money into the pockets of private corporations, or restrict our freedoms. Like laws themselves (which there are also too many of) it would be foolish to abolish all of them because some of them are bad.
We should be paying attention to who is writing and passing regulations and who those regulations serve, then hold people accountable when they don't represent our interests. That's hard to do in our current system where people's votes don't mean much, so we might want to try fixing that situation first but being "anti-regulation" makes about as much sense as being "anti-laws". Laws are a good thing. Regulations are a good thing. Let's just try to make sure they are both serving the public good.
> We have a lot of things that need doing in this country which can't get done when obstructionists stand in the way.
I think calling people who oppose your policy ideas “obstructionists” is a neat ad hominem, as if the only reasonable position is yours.
What you’re lamenting is that you can’t force an agenda without people agreeing — and when they refuse to agree with you, your agenda can’t happen. While you say “most Americans”, factually, you lack a majority for your agenda: you’re a minority trying to impose itself.
> I think calling people who oppose your policy ideas “obstructionists” is a neat ad hominem
It would be, except that I never actually said that. Plenty of people can disagree with me and not be an obstructionist. A person in congress can even vote against something I'm in favor of and not be an obstructionist. Obstructionists are something very different from just being "people I don't like"
> What you’re lamenting is that you can’t force an agenda without people agreeing
No, it's certainly not about "forcing an agenda" it's about functional governance which by necessity involves compromise and a willingness to give and take. It's not even always about "agreeing". An obstructionist will vote against their own policy ideas to prevent letting their opponent get their way.
> While you say “most Americans”,
I mean most Americans. Polls consistently show that the majority of Americans want congress to work and they don't like the government shutdowns obstructionists cause.
> but factually, you lack a majority for your agenda
That's incorrect too. While obstructionists can stand in the way of policies that divide the American public there are also situations where a policy has majority support but is still held up or prevented by obstructionists. If we lived in a country where the approval rating of senators indicated their likelihood of getting elected you might have a point, as obstructionists being elected and re-elected would indicate that the majority of the people support them and their tactics. That's not the country we live in however. For just one example, notable obstructionist Mitch McConnell is the least popular senator in the entire country. He has no reason to stop being an obstructionist though, because how the people feel about him doesn't impact his ability to keep his job.
That's not democracy, it's just what happens after many decades of efforts to weaken democracy and erode the ability of the American people to have a meaningful influence on policy and who gets into office.
> Polls consistently show that the majority of Americans want congress to work and they don't like the government shutdowns obstructionists cause.
Those same polls show they believe their own representative is doing an adequate job - which is my point:
There’s no “obstruction” there, just frustration that your faction doesn’t have the votes to achieve your desired policy because some groups don’t agree with you.
> there are also situations where a policy has majority support but is still held up or prevented by obstructionists
Policies overwhelmingly favored by the majority of Americans are generally blocked by establishment candidates — at a rate far higher than “obstructionists”.
> He has no reason to stop being an obstructionist though, because how the people feel about him doesn't impact his ability to keep his job.
People he doesn’t represent can’t impact this job — correct.
And again, we’re seeing that you’re just upset by democracy itself: that you can’t force representatives on people and accordingly, can’t achieve what you want without their support.
Your entire post was nothing but deranged bashing of political rivals when you can’t achieve you policy objectives due to their opposition.
Nope. One example from Mitch McConnell's own mouth, talking about the the Republican Congress created the debt ceiling crisis -
"I think some of our members may have thought the default issue was a hostage you might take a chance at shooting. Most of us didn’t think that. What we did learn is this - it’s a hostage that’s worth ransoming. And it focuses the Congress on something that must be done."
There is a difference between trying to reach a compromise across a different set of ideals, and one party explicitly holding Congress hostage over a routine annual procedure. The first is healthy, functioning government that gets things done. The second is obstructionism that stops things from getting done.
Again, from Mitch McConnell - "If I'm still the majority leader of the Senate after next year, none of those things are going to pass the Senate. They won't even be voted on. So think of me as the Grim Reaper: the guy who is going to make sure that socialism doesn't land on the president's desk."
He's the same guy who refused to even start the confirmation process of Obama's supreme court justice pick a year from the end of his term. The GOP rejects compromise as a strategy, and does not even pretend to secure coalitions.
This. When the electorate is sufficiently divided or otherwise in the process of debate that there is no consensus, it is proper that the legislative bodies representing the electorate also likewise have no consensus with which to pass new legislation.
Also, this feature also works the other way: If Congress were to pass, say, abortion guarantees or Chevron Deference into law, then good luck trying to get them repealed. See also Obamacare, which hasn't been repealed after it was passed despite hell being raised.
Hard disagree. First, I'd say our system is more the exception that the rule. For example, most parliamentary systems don't take the "gridlock" approach, i.e. where you say "it is proper that the legislative bodies representing the electorate also likewise have no consensus with which to pass new legislation."
Instead, they basically give the side that controls parliament the ability to pass legislation, and if they fuck it up, they can get thrown out and another party has their turn - this is essentially exactly what is happening in the UK with the Conservatives getting kicked out of power.
The problem with this "eternal gridlock" is that, since Congress can't pass anything, basically the executive branch and the Supreme Court take over legislative roles, which I'd argue is worse. I.e. the executive branch makes a ton of executive orders, which if challenged get decided by the Supreme Court, basically leaving Congress out of it nearly entirely because that legislative body is so feckless.
By objective results, parliamentary systems haven't necessarily produced better outcomes. And there's no need for the federal government to assume so much authority anyway; the states can take care of most issues on their own.
> . See also Obamacare, which hasn't been repealed after it was passed despite hell being raised.
Let's see how long that lasts now. Overturning Chevron was a step to that very end. It puts the Department of Health & Human Services on the chopping block.
The overturning of chevron now allows the federal courts to prevent the HHS and CMS from doing their jobs which can prevent the Affordable Care Act from being carried out effectively. Once it's no longer functioning the republicans will have a much easier time overturning it without massive backlash from the American public who overwhelmingly support it (most importantly without pissing off the independent vote).
seems they are legislating less and less by the Congress.
The list of acts of the 115th United States Congress includes all Acts of Congress and ratified treaties by the 115th United States Congress, which began on January 3, 2017, and ended on January 3, 2019. The 115th Congress enacted 442 statutes and ratified 6 treaties.
The 116th United States Congress, which began on January 3, 2019, and ended on January 3, 2021, enacted 344 public laws and zero private laws
The 117th United States Congress, which began on January 3, 2021, and ended on January 3, 2023, enacted 362 public laws and 3 private laws.
The 118th United States Congress, which began on January 3, 2023, and will end on January 3, 2025, has enacted 65 public laws and zero private laws
Is volume of legislation the correct measure? That seems analogous to clueless managers trying to measure the productivity of software developers by lines of code written.
Did you miss the part where I said " while it's held hostage by obstructionists"?
When everyone is in agreement, congress is not being held hostage by obstructionists and some things can pass. When obstructionists are in disagreement, they can prevent anything from passing.
Gerrymandering is self-limiting. You can gerrymander to increase your party's number of House seats from your state, or you can gerrymander to make your seats more secure, but you can't do both! You can make some seats more secure while others weaker so as to strike a balance between these two goals, but you won't get as many seats as if you optimized for seat count and you won't get as many safe seats as if you optimized for seat safety.
If you optimize for seat count then a wave election can easily turn many of those seats over to the other party, and with them control of the House.
If you optimize for seat safety then a wave election need only turn over a few of your seats to switch control of the House.
We have had lots of wave elections in the past 100 years: 1920, 1932, 1994, 2006, 2008, 2010. Three of those are in the past 20 years. Four in the past 30 years.
Gerrymandering isn't all it's cracked up to be. It cannot make any party impervious to wave elections.
This, anyways, only as long as all House districts in each state have roughly the same population.
> Gerrymandering isn't all it's cracked up to be. It cannot make any party impervious to wave elections.
I think the last 15 years of elections would seem to contradict you.
My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
Wave elections are a thing, but as we've seen, they don't give a the waved party a massive margin.
> We have had lots of wave elections in the past 100 years: 1920, 1932, 1994, 2006, 2008, 2010
2010 is a bit of a magic number, because that was the point when Republicans started their concerted, coordinated, country-wide gerrymandering campaign. So I don't think elections prior to then can support or refute any points about gerrymandering.
> My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
The republicans would then find it necessary to change the constituencies to which they appeal. Anyhow, a few states are horribly gerrymandered by the democrats. The problem is that democrats did so horribly during the Obama years midterms that most states ended up in control of republicans for the 2010 and 2020 census.
> My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
You do know that, in the seven House elections since 2010, republicans won the congressional popular vote four times: https://ballotpedia.org/Proportion_of_each_party%27s_nationa.... They won 1-6 million more total votes. Republicans will almost certainly win the House popular vote this year too.
I’m deeply curious how you formed the belief that democrats would consistently win without gerrymandering. That’s obviously not true even if you look at polling, which obviously isn’t affected by gerrymandering. Democrats are 0.5 points ahead on the generic congressional polls, but republicans were 2.5 points ahead last fall. RCP clocked them 2.5 points ahead in 2022 (actual was 2.8).
> 2010 is a bit of a magic number, because that was the point when Republicans started their concerted, coordinated, country-wide gerrymandering campaign. So I don't think elections prior to then can support or refute any points about gerrymandering.
They already had done that, and they lost two big wave elections. (E.g., Texas redistricted in 2004.)
They really started gerrymandering hard in 2010 with REDMAP. There's really an extreme delineation in technology used to abuse the system at this point.
> My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
It'd be better if the electoral boundaries were drawn with a polling-naive algorithm, but that isn't how it works in practice - you've probably noticed that every election is knife edge and there are regular upsets. This is because if one party is guaranteed to lose it will change its policies just enough to attract marginal voters from the other party.
For example, there were confident predictions of a similar nature that the Republicans would be unable to win elections because of the shrinking white demographic. We can see in the polling that what actually starts to happen is Trump still on the ballot but they've been in a long strategic process of picking voters from non-white demographics. The elections themselves are still knife-edge.
There'd be a different policy mix, but one thing we can predict about the future anyway is that there will be different policy mixes. Gerrymandering just privileges minority incumbent policies.
It really isn't. It's self-perpetuating. A gerrymandered state might _eventually_ switch sides, but far more likely it'll become more red (and yes, gerrymandering is predominantly a Republican tactic).
Between 1933 and 1995 we had sixty two years of Democrat party majorities in the U.S. Congress. That was before the Internet and back when the U.S. was less polarized than today. And the Great Depression and the New Deal left the Democrats very popular for decades. Today I don't see how gerrymandering could defeat wave elections. Democrat gerrymandering did not prevent 1994, and Republican gerrymandering did not prevent 2006 and 2008.
That's because historical gerrymandering was not as severe as now. Modern gerrymandering uses computer modeling to slice minorities as thinly as possible, creating insurmountable barriers.
Sure it's something that's been happening for a long time. But it's like comparing hand painting a picture to a modern graphics card rendering a scene 240 times a second and suggesting it's the same thing.
The hell it wasn’t. The year Joe Biden took office in the Senate, Democrats won 10% more House seats than their share of the Congressional popular vote.
You need to realize that the 1967 democratic national convention completely changed the parties. This is important because you’re citing ‘33 Dems as if they’re remotely at all like ‘95 dems.
Democrats before ‘67 were racist as hell. Their southern strategy in ‘67 destroyed the party. Non racist republicans merged with the non racist democrats into the DNC. Racist democrats, pushing the southern strategy, left the DNC and joined the Republican party.
maybe that was true a while ago, but no, it is vigorously practiced by both US Democrats and Republicans in the modern age .. source: quantitative Census demography for urban planning
It's true that both parties take part in it, however Democrats feel forced into it and would rather not. Democrats have repeatedly put forth efforts to end the practice. They have little choice but to play by the rules as they are until they manage to finally put a stop to it.
It’s partly (1) due to the structure (or rather, flaws) of the US constitution, (2) a ridiculous senate rule, and (3) gerrymandering as others have mentioned.
On (1): needing the approval of the senate, house, and president makes it very hard to pass laws.
On (2): the senate rule requiring 60% approval has already been repealed for appointments and for budgetary legislation, but it really needs to thrown out. The first two years of Biden’s presidency were mostly lost to obstructionism because of this rule.
On (3): this will most likely be banned if democrats get a trifecta federal control, and repeal (2), since gerrymandering primarily just benefits republicans.
> Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
One could argue, similarly to overturning Roe, they're diverging from a very critical precedent which is going to trigger a flurry of lawsuits over the next couple years
That was actually addressed on Page 7 of the decision.
They begin with "The stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established,..." and proceed to find the considerations "all weigh in favor of letting Chevron go"
Arguing stare decisis was invalid when the reasoning behind even hearing the case is ideological was necessary- it essentially is the only reasoning they could make.
So what though? I don't know exactly the reasoning for standing requirements, but they clearly weren't intended to prevent suits over things that affect millions of people in exactly the same way. I mean, standing would prevent man from suing to overturn a ban on women voting, but that's clearly a bug, not a feature.
My point is that you can find evidence for any outcome. The Supreme Court has a stance they like and backpedal to make the argument for it leading to inconsistent rulings.
There are a myraid of ways that roe vs wade could've turned out and in the final ruling document they'd all fit the correct format.
> [2] McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970
At that point she lost standing similar to another Jane Doe whose case became moot because she already had the abortion [1] and the desired action (injunction against an abortion) is irrelevant because it's already happened.
And we could all win the lottery, but let's not pretend half of the elected officials aren't brainwashed and the other half are so deep in pockets they use lint as a throw rug.
Aws compared to the unelected and unaccountable "expert" bureaucrats making arbitrary rules that do things like penalize you for collection rainwater on your own property?
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
What would such a law look like?
Let's pretend we're in congress and want to pass a law limiting pollution in lakes and rivers.
One option would be to have a bunch of experts tell us what we should explicitly ban and write those into the law. This option would mean we need to revisit the law every few years as the science changes and new harmful chemicals are developed or identified.
If instead we want the agency to be able to adapt to new situations, how do we word it in a way that won't be overturned? Congress is in charge of legislating. When does writing rules for what is and isn't pollution cross the line to legislating? Can congress turn any of that power over to executive branch agencies without a separation of powers argument coming up?
I have some views on this supreme court and believe they're driven by ideology and not a consistent legal framework. Even if you believe they are completely impartial how would you protect these laws against a future court that may not be?
Easy, like we do in Europe, by amending the constitution to explicitly allow the Congress to statutorily authorise administrative regulations within the bounds as delegated by the statute.
Likewise Congress could clearly state that agencies are not allowed to interpret the gaps. If Congress was unhappy with how the executive branch was working, it could solve the problem easily and directly. So the Court, when making this decision, was not concerned about what’s “right” or even Constitutional. It showed its hand by disrupting existing rulemaking that has been going on and explicitly allowed by the Court and implicitly granted by Congress for decades.
Changing the status quo on a fundamental de facto government structure is not good judiciating.
I am not surprised that conservative-leaning court has put their finger on the scale of what they always described as “activism of agencies” and “legislating from the bench” by pushing the congress to act - I see it as consistent with conservative principles.
I am not saying I agree with it or condemn it - rather stating the path forward.
I too would like congress to start acting the part. They have the tools.
Congress also possesses a variety of tools to limit obstructionism if it so desires.
But a more important point - is that congress is a tool of democracy itself and is a reflection of the attitudes and desires of the populace. If populace no longer has the aptitude to apply its rights to elect the government that serves its interests - then it will experience the consequences of such negligence and learn from them, which is also its right.
Refusing it that right is something much worse - authoritarianism when an individual or a group gets to pick winners or losers.
I think that's a very simplistic, idealistic view of how the US government works. In reality, the populace is very limited in what changes it can make and which people can realistically become elected. Our electoral system, entrenched two-party system, as well as the prevalence of gerrymandering, all come together to ensure that.
A few decades ago it didn't seem realistic that someone like Barack Obama could be elected President. And yet it happened twice. Our system has some flaws but a bit of idealism is still warranted.
Remember when Obama won? The Republican Party was at a morale nadir, and they rallied together under the banner “1 term president”. They fought every single thing.
Mitt Romney had to oppose his own Medicare plan, which the democrats adopted so that they could find common ground.
Obama winning was probably the last gasp of the system working as it was intended.
There are plans upon plans to ensure the system can never do that. That agencies are weakened, courts are stacked, local elections won, media narratives perfected. It’s tempting to say this is to ensure the “libs” lose, but that only plays back into a narrative and camouflages the issue.
Effective, logical government is itself the problem.
I think that someone is paying attention to the details, to the org charts, to the minutiae of laws, and making a coordinated effort to move things in a single direction.
I dont think what you described counts as idealism anymore.
I don't think that really contradicts what I said. Social attitudes change over time; that's not in dispute. The US is still pretty racist, but has gotten less racist over time. I think things like that absolutely are causes for idealism.
But Obama was still one of a very few options Americans had the opportunity to elect. He ended up in the primaries largely without the involvement of the vast majority of the country. My point isn't that things don't get better, just that we don't get a lot of choices, politically.
(Though if Trump wins this fall, and the right succeeds in their plans for their government "makeover", I think that will set back the "things getting better" train for decades. Hell, our hard-right SCOTUS majority is already unraveling that.)
They could start by changing their rules so that one side can't refuse to legislate. Congress decides how Congress operates, and for some reason despite everyone being awful mad about it, Congress has never decided to make it harder for congress to be obstructed by Congress. They have from time to time made it easier (see filibuster-less filibustering), seems like they could undo that any time they'd like to get back to work.
By winning clear majorities, either "side" can do whatever it wants, including changing all the House/Senate rules to pass laws with simple majorities.
> Changing the status quo on a fundamental de facto government structure is not good judiciating.
Isn't the fundamental structure that the legislative branch writes laws, the judicial brand interprets laws, and the executive branch enacts/enforces laws? That's what I was taught in school.
I don't doubt that this is a political move to shift power from a liberal presidency to a conservative supreme court. But to me it seems like a case of the right thing done for the wrong reason.
I liked this section of Justice Gorsuch's concurrence:
> How bad is the problem? Take just one example. Brand X concerned a law regulating broadband internet services. There, the Court upheld an agency rule adopted by the administration of President George W. Bush because it was premised on a “reasonable” interpretation of the statute. Later, President Barack Obama’s administration rescinded the rule and replaced it with another. Later still, during President Donald J. Trump’s administration, officials replaced that rule with a different one, all before President Joseph R. Biden, Jr.’s administration declared its intention to reverse course for yet a fourth time. Each time, the government claimed its new rule was just as “reasonable” as the last. Rather than promoting reliance by fixing the meaning of the law, Chevron deference engenders constant uncertainty and convulsive change even when the statute at issue itself remains unchanged.
If his complaint is the back-and-forth, this is certainly a look-in-the-mirror moment for Gorsuch and the present court, who've sure made their own notable contributions to whipsaw governance dynamics lately.
If his complaint is that there's an executive discretion in executing the law or the expectation should be that congressional force only goes as far as its ability to write micromanagement into statute then it's hard to restrain from making "do you even constitution bro" or "who are you and why are you wearing that robe" remarks.
(Of course, in representative government, not only elections but agency and judicial appointments have consequences, so while it it may be inconsistent for justices to exercise that privilege for themselves while arguing away the right of another branch to do the same, it is not that big of a surprise, and it is entirely consistent with a philosophy based in elitist privilege for some that is likely behind much of today's ruling among others.)
This is disingenuous. The claim of Chevron supporters is that we need to defer to the agencies because they can make decisions based on technical expertise that the political branches don't have. But the example proves that is not what is happening. The fact that the rules changed every time the administration changed proves that these are, in fact, political decisions being made under the guise of technical expertise. What is really happening is legislation by the executive branch which is blatantly unconstitutional.
If different rulings by different people prove that expertise wasn't applied, it's equally credible to claim that expertise wasn't applied in the creation of this decision, since it's certainly a change.
Additionally, it's far from clear the examples reviewed were representative vs written to support the conclusion, so in addition to the problem of how variance is framed as a bug rather than a feature, it's not even really clear how much is actually occurring.
"Elections have consequences" is a well-known phenomena, and the idea that a branch other than the legislature might have influence over how the law is interpreted or executed shouldn't be news to anybody, least of all a member of the judiciary, many of whom will in fact be no doubt less qualified to make judgments vs agencies with specific technical and legal expertise.
Take the example from this decision itself. The Department of Commerce issued a rule requiring certain fishermen to have federal observers on their boats and pay a fee. This decision was not made with any expertise and is not even the type of decision that can be made scientifically. It is purely a political decision that has nothing to do with any technical expertise. Yet the agency still argued it was unreviewable under Chevron.
It doesn't matter if the example is representative. It doesn't matter if it is 1%, 10%, or 50%. If agencies are able to act as a political branch and use Chevron as a cover to make these political decisions immune to judicial review, then the system is broken and needs to be fixed.
This is like defending qualified immunity for police by saying "well the arrests you presented where the police used the QI defense to cover over egregious rights violations are not a representative sample of all arrests made by the police."
This is so incredibly ignorant, which is fine. We're on a startup forum after all--not a conlaw round table. We aren't supposed to be experts. But to think you have some superior intellectual standing on this issue compared to any of the SCOTUS justices to too much Dunning-Kruger for me to just let slide.
While argument from authority does make sense in a social/political context which functionally defines correctness in terms of authority of appointed office, I'm sure it wouldn't be lost on any seasoned lawyer that it still constitutes a fallacy when it comes to the merits of the argument alone. Similarly no one would know better than a lawyer the distinction between the authority of an opinion and its merits -- or to get less meta and back closer to the specifics of the opinion and surrounding arguments, the fact that multiple arguments can be reasonable and multiple policies might well be not only a side effect but the expected and even perhaps desired outcome of public processes from court decisions (this one obviously different from the one it overturns) to elections.
And part of the point of institutions like courts is that the reasoning is subject to public review and discourse, both institutional and social.
I'm making a specific response to shortcomings apparent in the argument -- the opinion seems to treat the fact of differing interpretation of law or differing policy goals between different executive administrations to be some kind of bug or worse a surprise, when it seems entirely reasonable to expect it as a feature, one that certainly shouldn't be surprising to someone whose whole career (and indeed, features of this very decision) turns on the interpretive range often present within the law.
If you have specific commentary indicating how experts from a conlaw round table might engage this response, by all means, don't "just let slide", enlighten all of us in the course of doing the work that people genuinely combating Dunning-Kruger might do by elaborating on what, specifically, is overlooked in the response or missing from its counterargument.
Insofar as you think you were responding to what you identified (and then conveniently changed to fit your narrative) to be his arguments, I would say it's not hard to see the difference between a law changing every 4-8 years versus once every 40+ years (combined with about 5 years of foreshadowing the changes). You also conveniently run with the "fill in the gaps" narrative, by belittling the scope and impact of these gaps. Trillions have been spent in these gaps. Thousands if not millions of lives have ended due to choices in these gaps. Families torn apart. Suicides. Bankruptcies.
So, for "specific commentary", me, a regular dude, can see straight through them. If you wanted a real, deep Roberts-quality response, you're in the wrong place. None of what you said was even presented in oral arguments, because two of the finest lawyers in the world could also see through that pretentious fallacy filled drivel, and knew that the 9 justices, all of whom are also leagues ahead of you or I in legal knowledge and skill, would equally scoff.
ACB and Jackson? I am about as well-versed in the law as any non-lawyer, and I have 10% at best of the legal knowledge of either of them. The hubris on legal matters of some of the people here is laughable. It's the equivalent of some random law student criticizing John Carmack.
I assume that they were not talking about Jackson.
McConnell blocked the nomination of Merrick Garland for 293 days arguing that there was not enough time before the election.
Then, somehow, they turned around and passed through Amy Coney Barrett in 35 days, instead of following the same precedent of waiting for the election.
The fact that you think this is hypocrisy, and are willing to voice that "opinion" (i.e. regurgitating what some news outlet told you) with such assuredness within this community using such passionate and extreme language is why I find some of the pretentiousness on here to be so bad that I just have to laugh at it.
If you are actually a programmer, figuring you why Garland wasn't a precedent for ACB wouldn't be hard. You just conveniently left out an 'if' statement in your analysis
Notice that whenever there was an A1-A2 party split, especially when a nomination was approaching an election, either the nomination failed, or it didn't succeed until the lame duck (if the president's party won re-election).
The exceptions require some better historical knowledge. For example, Democrats approved Anthony Kennedy (the most liberal justice a modern republican has ever nominated) in late 1987, but only after they had blocked Robert Bork.
The historical precedent for compromise was even in the data: when it was successful, the votes were XX-0
The real failure here was on the part of Obama, who refused to budge at all with the political lean of his nominee. He looked at the polls, saw that Hillary was slated to crush someone who was essentially running as a joke, and thought "I don't need find a bipartisan compromise, Hill will just fill this in January."
But even when it's not close to an election year, look at the Nixon years. Democrats blocking everything until they got nominees they truly approved of. I'm sorry Obama had such hubris as to think Dems were a lock for 2016 that he didn't have to compromise, but he rolled the dice and lost. Sorry. That doesn't make it illegitimate. It makes it the same exact political situation that has always existed.
I think you're misunderstanding. Bork was rejected, with a vote. We are looking at candidates who's vote has lapsed and trying to understand why a vote was never called.
In 1954 John Marshall Harlan II lapsed in November of an Election year. That's probably the precedent you're looking for. The reason you probably didn't include him is because the reason he lapsed and was re-done in the next session of congress was because there was no time, and he was the first nominee to be questioned in front of the senate. So despite the session lapsing, he was again nominated, accepted as a nominee and eventually voted on.
The example before that is Pierce Butler, who again was nominated in November (21st, not an election year), and they couldn't make it before the legislative session ended. Similar to John Marshal Harlan, he was again nominated in December, and voted on in the same month.
The reality is we have to go past William B Hornblower in 1893, and past Stanley Matthews in 1881, all the way to 1866 with Henry Stanbery to find our last instance of a nominee who was lapsed, but not voted on. To skirt their responsibility to vote they passed the Judicial Circuits Act to reduce the number of justices to 7, denying Jackson his right of an appointment.
Looking back to modern day, none of these fit the Garland example.
- Garland was nominated in March, not at all at risk of missing the legislative session
- No Senate has ever decided to skirt it's responsibility by refusing to acknowledge the nominee.
- Garland was a moderate, and likely would have been confirmed. He was previously confirmed to the court of appeals in 1997 by a vote of 76-23.
- There is no precedent for refusing to vote on a nominee in an election year. There have been 7 election year nominations since the civil war, and all 7 were confirmed (only one without a vote)
My original claim was that they are hypocrites, and they are. Amy's nomination was done in an election year, in September before the election.
> The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president. - McConnell (2016)
> I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first time, you can say Lindsey Graham said "let's let the next president, whoever it might be, make that nomination" - Lindsey Graham (2016)
> "I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg." - Lindsey Graham (2020)
----
> look at the Nixon years. Democrats blocking everything until they got nominees they truly approved of.
Untrue, Democrats voted on all 6 of Nixon's nominees, and only 2 were rejected. This is precisely what I mean, even when congress doesn't agree with the president their responsibility is to call the vote, and show the disagreements in the vote.
> Notice that whenever there was an A1-A2 party split, especially when a nomination was approaching an election, either the nomination failed, or it didn't succeed until the lame duck (if the president's party won re-election).
Oh, waaaahhhh. "The mechanism by which GOP blocked it was different from OUR mechanism. The proper way is to waste everyone's time by parading him in front of the Senate, belittling him and his accomplishments publicly, and then rejecting him."
There are only two reasons votes get held: they already know the result, or they want to make senators accountable on record. Either way, it was a waste of time for Garland.
Yes. We do it all the time. And at the margins, sure, it's unfair. But when a random poster using sophomoric logic is going on some pretentious rant about knowing more than Neil Gorsuch, all you need to do is note that one person has spent tens of thousands of hours being aided by the finest educational paths to the job of SCOTUS justice, and one is a professional spamer
Let's judge the ideas/rulings for ourselves, after all we often vote for judges or those who appoint them. Law isn't rocket science. If it's impenetrable to normal people then that also is a problem worth solving.
But fundamentally, how is this different than what the Supreme Court does? The Supreme Court interprets the constitution and its meaning as it relates to whether or not a law is constitutional. The overturning of Roe v Wade is the direct result of the current court saying 'actually, the way we previously interpreted the constitution was wrong'.
We've gone through significant uncertainty and convulsive change as a result of the Supreme Court throwing out decades of precedence. This isn't to say this is always a bad thing, but the reasons for their past few decisions do not pass muster.
It's not. I think this actually flips a lot of power back to the judicial branch in the short term, which is significant because federal judges enjoy lifetime appointments. Of course, Congress has the power to look at unexpected or perverse-seeming judicial outcomes and legislate accordingly, but the legislative process is typically slow and subject to various sorts of bargaining; a rather corruptible process.
>But fundamentally, how is this different than what the Supreme Court does? The Supreme Court interprets the constitution and its meaning as it relates to whether or not a law is constitutional. The overturning of Roe v Wade is the direct result of the current court saying 'actually, the way we previously interpreted the constitution was wrong'.
That's sort of the point, because congress has abdicated their responsibility for so long, many of the "laws" and "rights" that exist in our legal framework are mere shadows of actual legislation. They're executive whims or judicial policies, both of which are inherently fragile and subject to sudden change. Roe v. Wade was the "law of the land" only to the extent that the courts continued to interpret an ambiguity in the law the same way as they always had. Congress had decades to shore up a case that even the jurist who were part of it said was extremely weak. Everyone knew it was fragile and the DNC cashed in on that fragility every election.
Or consider medical marijuana, which is currently only un-prosecuted at the federal level because the president told the DEA to chill out for a bit. The fact that in November the next president could change their mind and conduct federal raids of dispensaries across the country is not a good thing. You might argue that they couldn't do that because the medical marijuana industries and laws are crafted to avoid crossing state lines, but that depends on A) ignoring decades of Wickard (which admittedly the current SCOTUS might be willing to do, but boy if you think this decision or Roe was controversial, that would be a doozy) and B) ignore the very obvious fact that some of that legal supply is leaking across state lines illegally.
The fact that Net Neutrality is on again/off-again is another example of this. Major legal decisions are being left to the whims of two octogenarians who it's a miracle manage to get through the day without shitting their pants, and a judicial system that is inconsistent at the best of times. The courts have always been political, but if they are uniquely so at this time, it's because the folks interested in politics have figured out its easier to get what they want via executive fiat and judicial wrangling, and congress has learned their jobs and income are more secure when they don't have to take the blame for those things.
I agree with Gorsuch's overall point, but he's also writing it knowing full well that today's Congress is not equipped to do all that rulemaking, and not equipped to agree on and pass the huge volume of legislation that would be necessary to duplicate all that rulemaking within the legislative branch.
And he's ok with this, because his political ideology is such that fewer regulations and less rulemaking is a good thing.
Ultimately Congress cannot take on all of the executive branch's current rulemaking authority without some huge changes to how the body works. Those changes will not happen, because conservatives don't want these rules.
Reversing Chevron doesn't mean that Congress has to do all the work. It means that the courts will interpret what the statutory language allows when the agencies do their rulemaking. It's really that simple, and it's not a big deal.
Are those rules necessary? Do those rules have to be implemented at the federal level? Can the states take responsibility for some of the items instead?
The 14th Amendment was unambiguous in its intent, but subsequent malicious/activist judicial shenanigans watered it down, e.g., the Slaughter-House cases and the 1874 Section 1983 deletion.
Congress can still legislate the outer perimeter of a law and let agencies grant exceptions. It just takes a different drafting style, which is easy, and Congressional willingness to accept responsibility for the outer limits, which is hard.
I guarantee you that if Congress passed a law codifying Chevron, this same Court would overrule it on the grounds of some other doctrine they just completely made up in their minds, most likely the major questions doctrine ("MQD"). These self-described "originalists" (side note: "originalism" was invented in the 1980s) just completely made up MQD to justify overruling clear language by Congress if the issue was subjectively large enough. It was used to overrule clear authority given to forgive student debt, for example.
I don't think you understand just how much of a power grab this Court has engaged in, which is funny because its supporters who are the same people who complain about "activist" liberal justices. MQD has essentially usurped the power of the other 2 branches of government whenever they see fit.
Example: in the case yesterday when SCOTUS didn't understand what corruption was they said Congress had had the opportunity to clarify since 1986 and they chose not to so deference should be given to that inaction.
Well, Chevron was decided in 1984 and no administration took action in the last 40 years. Where's that same deference?
The Democrats can be faulted for not codifying Roe v. Wade but I guarantee you that, even if they had, it wouldn't matter. Thsi Court would've found some justification to overrule that. Deference to the states, that sort of thing.
There is no fundamental princples in play here. It's entirely results-oriented.
Where I'm from, our "supreme court" can overthrow congress legislation for not following the constitution. Is this the case here AND is this the case in the US (generally speaking)?
The US Supreme Court can decide what is constitutional, and Congress can amend the constitution that is the basis for the USSC decision (with 2/3 vote).
With the current makeup of Congress, it is unlikely so the USSC holds significantly more effective power than if it had a functioning Congress.
I fully admit that I don’t have a great civics teacher, now more than 20 years ago… but I don’t think this is true? Can anyone else weigh in here?
Edit - wow this is actually true. From white house.gov:
> An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification
Kinda weird to ask, when the answer is five seconds away plugging "US constitution amendment process" into a search engine.
> wow this is actually true
Not sure why you're so surprised about it; consider that the threshold for overriding the president's veto of a regular bill passed by Congress is a two-thirds vote from both the House and Senate. It seems like the bar for amending the constitution should be higher (significantly higher) than that.
Besides that, not involving the state governments at all when amending the constitution feels like it would be a bad move, in a country founded on the idea of strong state leadership and a comparatively weak (though not as weak as some of the founders wanted) central government. Certainly our federal government is even stronger power-wise today than even the more strong-central-government proponents among the founders would have expected.
Right. But the elected officials can vote to remove members of the supreme court (or federal judges in general), though the bar for doing so is set very high. And the supreme court can't remove elected officials. So the supreme court's power over elected officials is not absolute.
The idea in US constitutional law is one of balance: we have three branches of government, and each are granted powers that can act as a check on the powers of the others. It's far from perfect in practice, but the intent is good, I think.
> Shouldn't that require a Constitutional Amendment?
No, Article III § 1 explicitly vests judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” [1].
> Why isn't the investigative/prosecutorial branch distinct from the executive and judicial branches though?
No, to change the separation of powers they need a constitutional amendment because that's a change to the Constitution, and amendments are the process for changing the Constitution.
To interpret what was meant by Liberty and Equality as values, as a strict constructionist.
> The Constitution literally says the Congress has the power to establish inferior courts. Congress setting what is justifiable is highly precedented.
I'm having a great deal of difficulty understanding how you got from "Congress may establish inferior courts" all the way to "Congress has the power to exclude its legislation from judicial review, including that of the Supreme Court itself, at its own prerogative". Could you explain this chain of reasoning?
> The words “separation of powers” never appear in the Constitution. It’s a phrase used to describe the system that document establishes.
Yes, no one argued otherwise. Separation of powers is indeed established by the Constitution, regardless of what specific terminology is used to explain the concept.
Can Congress grant rights? No, because persons have natural rights, inalienable rights; and such enumeration of the rights of persons occurs only in the Declaration, which - along with the Articles of Confederation - frames the intent, spirit, and letter of the Constitution ; which itself very specifically limits the powers of the government and affords a process of amendment wit quorum for changes to such limits of the government in law.
Congress may not delegate right-granting privileges because the legislature hasn't right-granting privileges itself.
The Constitution is very clear that there are to be separate branches; each with limited privileges and immunities, and none with the total immunity of a Tyrant king.
A system of courts to hear offenses per the law determined by the federal and state legislatures with a Federal Constitutional Supremacy Clause, a small federal government, a federal minarchy, and a state divorce from British case law precedent but not common law or Natural Rights.
And so the Constitution limits the powers of each branch of government, and to amend the Constitution requires an amendment.
Why shouldn't we all filibuster court nominations?
Without an independent prosecutor,
Can the - e.g. foreign-installed or otherwise fraudulent - executive obstruct DOJ investigations of themselves that conclude prior to the end of their term by terminating a nominated and confirmed director of an executive DOJ department, install justices with with his signature, and then pardon themselves and their associates?
The Court can or will only hear matters of law. Congress can impune and impeach but they're not trained as prosecutors either; so which competent court will hear such charges? Did any escape charges for war crimes, tortre without due process, terror and fear? Whose former counsel on the court now.
What delegations of power, duties, and immunities can occur without constitutional amendment?
Who's acting president today? Where's your birth certificate? You're not even American.
What amendments could we have?
1. You cannot pardon yourself, even as President. Presidents are not granted total immunity (as was recently claimed before the court), they are granted limited Privileges and Immunities.
2. Term limits for legislators, judges, and what about distinguished public/civil servants who pick expensive fights for the rest of us to fight and pay for? You sold us to the banks. Term limits all around.
3. Your plan must specify investment success and failure criteria. (Plan: policy, legislative bill, program, schedule,)
Can Congress just delegate privileges - for example, un-equal right-granting privileges - without an Amendment, because there is to be a system of lower courts?
Additional things that the Constitution, written in the 1770s, doesn't quite get, handle, or address:
US contractors operating abroad on behalf of the US government must obey US government laws while operating abroad. This includes "torture interrogation contractors" hired by an illegally-renditioning executive.
The Federal and State governments have contracted personal defense services to a privately-owned firm. Are they best legally positioned to defend, and why are they better funded than the military?
What prevents citizens from running a debtor blackmail-able fool - who is 35 and an American citizen - for president and puppeting them remotely?
Too dangerous to gamble.
Executive security clearance polices are determined by the actual installed executive; standard procedure was: tax return, arrest record, level of foreign debt.
Would a president be immune for slaving or otherwise aggravatedly human trafficking a vengeful, resentful prisoner on release who intentionally increases expenses and cuts revenue?
Did their regional accent change after college?
Can it be proven that nobody was remoting through anybody? No, it cannot.
And what about installs ostensibly to protect children in the past being used misappropriatingly for political harassment, intimidation, and blackmail? How should the court address such a hypothetical "yesterday" capability which could be used to investigate but also to tamper with and obstruct? Why haven't such capabilities been used to defend America from all threats foreign and domestic, why are there no countermeasure programs for such for chambers of justice and lawmaking and healthcare at least.
And what about US Marshalls or other protective services with witness protection reidentification authorization saboteurially "covering" for actual Candidate-elects?
Can a president be witness protected - i.e. someone else assumes their identity and assets - one day before or one day after an election? Are Justices protected from such fraud and identity theft either?
You're not even American.
And what about when persons are assailed while reviewing private, sensitive, confidential, or classified evidence; does such assault exfiltrate evidence to otherwise not-closed-door hearings and investigations?
Which are entitled to a private hearing?
Shouldn't prosecute tortuous obstruction? Or should we weakly refuse writ; and is there thus no competent authority (if nobody prosecutes torture and other war crimes)?
Let's all pay for healthcare for one another! Let's all pay for mental healthcare in the United States. A War on Healthcare!
Are branches of government prohibited from installing into, prosecuting, or investigating other branches of government; are there any specific immunities for any officials in any branch in such regard?
How can congress do this if the Supreme Court is going to repeatedly make retroactive changes to what the laws that congress passes mean?
For 40 years, legislation was drafted under the assumption Chevron deference was going to be used to interpret the text of the bills. Now, all of those laws mean something other than what the authors intended.
If this was software, it'd be the equivalent of changing post-K&R C language semantics in a backwards incompatible way, and just saying "Well, if programmers care that industrial control systems are literally burning factories to the ground, they can just fix all the software that was written since 1984. Also, moving forward, we reserve the right to keep making intentionally-breaking changes to the compiler, so during the rewrite, they should take future planned-but-currently-secret semantic changes into account."
> Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
That the court is allowed to exercise power not enumerated anywhere is a major problem, just not a new one. We really should have legislated their role centuries ago.
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
They could--but in the case of the Administrative Procedures Act, which is the law relevant to this case, they didn't. Indeed, as the Court's opinion points out, they did the opposite: the Act explicitly says that the courts shall interpret the law when doing so becomes necessary to resolve a case.
Note that this actually limits the scope of this ruling in a way that does not appear to be recognized by commentators. The Court here is not saying that Congress can no longer pass a law that explicitly grants interpretive power to an executive branch agency. It's just saying that Congress did something different with this law.
Valid point! I’d like to hear more regarding this concern. While I don’t necessarily view what I referred to as “interpreting the gaps” as synonymous with “legislate”, IANAL and would appreciate professional opinion here.
IMO The rule of law derives from precedent. Prior to courts there was the rule of the monarch. The common law then developed as courts resolved disputes. It was all gap. The authorities would say the accused did something wrong and should be punished, and the courts came up with things like “murder” and “negligence.” Statutes are a relatively new way of making laws. They’re crude. Rather than simply resolving a real dispute based on the facts of an actual situation (and limiting the scope to the same or similar situations), legislators twiddle their thumbs and prospectively guess at what situations might occur and which words may address a multitude of unpredictable nuances. Statutes are pretty terrible because they’re so hard to refine. If a situation bumps against the plain language of a statute, the courts are essentially compelled to absurd and unjust results. However, that’s democracy. The people say they want the power to make the law, they say they want the clarity of a statute over a law book, and their errors are better than an overthrow of the system.
Well, for example, the SEC has used a law from 80 years ago about retaining memos as justification for billions in fines against companies whose employees used whatsapp to say "the market is crazy" (or similarly benign things). All they did was "fill in a gap" to make this totally new law.
This is exactly the argument the dissent made: we've had Chevron for 80 years; if Congress was ever unhappy about it, they could have done something about it.
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
Congress has already done that. Conservatives don't like that, calling the result the "administrative state". A very strict interpretation of the constitution could suggest that Congress cannot actually delegate legislative powers to executive branch agencies, and the conservative members of SCOTUS are (unfortunately) free to take up that interpretation.
acting for political expedience? They are making heavily impactful, politically unpopular moves to correct what they believe to be long term errors buried in court precedent.
It's politically expedient for their goals, your post explains exactly why: they are hugely unpopular moves, if for any reason, because of the tremendous uncertainty they create in the law at large.
I don’t buy the idea that this creates uncertainty. When I read a statute I have a level of certainty as to what it means. When I read executive branch rules interpreting the statute I have a better understanding of what the executive intends to do, but - as they don’t write the law - it doesn’t provide much clarity as to what the statute actually means. The executive can and should continue to provide guidance about its intentions, but saying that the law is whatever the executive intends it to be is smoke.
Congress cannot divest its legislative power, nor can it vest interpretive power to executive-branch agencies. The judiciary interprets law— not Congress.
There's no issue with Congress interpreting laws here. The executive branch is (was). Which they have to do because how do you enforce a law that you do not have an interpretation of? If Congress disagrees with the judiciary's interpretation they can just pass a law that makes their interpretation the literal law.
Congressional incompetence is partially an act. They spend most of the year deflecting and complaining that they can’t get anything done, then in a burst here and there, they kick out a multitude of new laws. There’s a substantial level of political theater. Neither side wants to tell their base that they’re wrong. It’s easier to say that the other side is blocking them and golly gee I’m doing everything I can.
It's worth reading the judgement itself. The court has indeed voted to give the courts more power, but not on the basis of nothing. It did so because it views it as taking back powers that were incorrectly/lazily given up without basis in what Congress wanted. From the judgement:
Congress in 1946 enacted the APA [Administrative
Procedures Act] “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal
questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, 5 U. S. C. §706 (emphasis added)—even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding
This feels like one of those topics that may sound ok in theory, but breaks down in practice. The implication is that the judges must be well-versed enough in any domain brought before them to interpret the laws effectively. This seems like a tall order for nine people. We have already seen this trouble in expecting strict interpretations regarding tech.
To be fair, Congress has the same problem. I believe that was in large part the impetus for giving the agencies discretion. They have a better chance of having the depth of expertise to craft effective regulations.
The Supreme Court doesn't resolve cases directly, they resolve questions of law for lower courts to take into account. They are meant to be experts in law, so there's no problem there. The lower courts can't be experts in everything, but bear in mind two things:
1. Courts have expert witnesses and a whole system around how they are called, challenged and questioned. Judges are trained to learn what they need to know from witnesses.
2. Good court systems do have expert judges they can draw on.
I recently took part in the Craig Wright case in the UK as a witness. Wright forged enormous quantities of evidence and proving the forgeries often required deep technical knowledge about file metadata, how computers worked etc. Fortunately the judge was deeply technical himself, being often a judge on complex patent cases, and had no difficulty with any of the complexities.
It reads like it creates a deliberate impasse. The opinion states that ambiguities in law no longer implicitly give agencies discretion. That means Congress has to write unambiguous laws. But my original post acknowledges they cannot. Based on this ruling, it seems like anything other than a perfect, airtight law means it's effectively non-enforceable. So where does that leave us? It seems like the SC has laid the table for constant rules-lawyering by corporations to get whatever they want. In other words, they've let the perfect be the enemy of the good.
> That means Congress has to write unambiguous laws
I don't understand where this belief is coming from. The judgement explicitly states that writing unambiguous laws isn't possible. There will still be ambiguous laws, and those ambiguities will still be resolved. The only matter being decided on is who gets to resolve ambiguities - is it the agencies or is it the courts.
Let's put this another way. Did Congress have to write unambiguous laws or have them be unenforceable before 1984? Clearly not. The Constitution itself is ambiguous on many points. Do other countries, which lack any equivalent of Chevron deference, have to write unambiguous laws or have them be unenforceable? Again, clearly not.
>The only matter being decided on is who gets to resolve ambiguities - is it the agencies or is it the courts.
I think we are agreeing here. I think the distinction is that I'm claiming the courts would need (yet don't have) the expertise to clear up ambiguities in such domains. Where do I get this claim? From the justices themselves.[1] There is evidence they are overly confident in their understanding when "doing their own research" on a domain outside their expertise.[2]
So given that context, it's probably a bad idea to have justices decide on ambiguities. But if that power resides in them now, it means the only way to have effective laws is to avoid ambiguities in the first place. That's why I stated that is now on Congress. However, the court is also acknowledging that isn't possible. That's why I originally said it reads like they created a deliberate stalemate. From the court we have the following:
1) Congress cannot be expected to create unambiguous laws.
2) It is the court's job to resolve ambiguities.
3) The court lacks domain expertise.
I'm claiming those set up a natural conflict because expertise is necessary to effectively resolve ambiguity.
The most generous interpretation is that the justices don't need to know the details of the domain expertise, but rather just need to know how it interfaces with people and the law.[3] I'm pretty skeptical of that leading to good outcomes in complex, nuanced situations. I don't think we can pretend law is abstractly disconnected from the complex systems it regulates. As society progresses, most things get more complex so I expect the problem to get worse, not better.
Remember that law is first and foremost meant to be read by ordinary people, as they are the ones expected to know it and follow it. Ignorance of the law is not an excuse, etc. If a law is so difficult that even a judge armed with a courtroom full of expert witnesses can't figure out what it means it should not exist, because how could any actual citizen be expected to understand or obey it? People who write such laws don't get to whinge when other people try to clean up their mess.
There's certainly no evidence of an attempt to create a deliberate stalemate here, as "laws that judges cannot interpret even with help" isn't something the Supreme Court is going to consider a legitimate problem to begin with so why would they consider it? But it's fascinating the degree to which some people on this thread are sure this is all a cunning secret plan by the justices to advance a political ideology. Projection, much?
> There is evidence they are overly confident in their understanding when "doing their own research" on a domain outside their expertise.[2]
Great. So are regulators, politicians and especially journalists. The idea that agencies never rely on bogus claims or statistics is a deeply romantic view.
Really, I don't have any sympathy for the US regulatory agencies on this issue. Too many of them have a history of abusing Chevron deference. If the deference standard had any advantage at all it'd be that you could get binding rulings from regulators ahead of time, without needing to actually end up in court first. But regulators always refuse to do that, because they aren't obliged to and it would reduce their options. Instead what they do is make vague rules, tell citizens (e.g. entrepreneurs) who ask for clarification to get lost, wait years for some of those people to make successful businesses and then decide that what they were doing had been illegal all along under some strange interpretation of the relevant rule. It's a form of retroactive lawmaking, which is forbidden by basically any constitution because the whole point of law is that people are meant to be able to follow it.
This sort of abusive behavior is so common it's clearly deliberate. Instead of helping society, the agencies end up working against it in order to maximize their own power.
Having the people who interpret laws be fully separated from those who write the laws aligns incentives properly: there's no longer any benefit to passing maximally vague or contradictory rules in the hope of being able to do whatever you want later. Laws that are as specific and clear as possible is exactly what a society needs to succeed, because when the rules are clear people are free to innovate and do business without fear.
>So are regulators, politicians and especially journalists
Yes. The important distinction that I drew was that the power is now vested in a very small group of nine people. IMO that measures it much easier for biases to continue unabated. At least in large numbers, there are more likely to be more rational viewpoints to counter our innate biases.
> At least in large numbers, there are more likely to be more rational viewpoints to counter our innate biases.
Maybe, but there is absolutely no mechanism to ensure that rational viewpoints will prevail in a group of large numbers, and quite a large danger of social pressure causing less rational viewpoints to prevail instead.
The court previously provided those guardrails. With Chevron deference, the agencies could clear up ambiguities, but the court could reel them back if they were found to be unreasonable. Now, there is no check-and-balance; the entire power resides in the court. In the words of Justice Kagan, that is "judicial hubris."
If the court makes an unreasonable interpretation, the only mechanism to rectify it is for Congress to be explicit. This has multiple problems: first, getting anything through Congress is becoming increasingly difficult. Secondly, the Court already admitted that laws will always have ambiguities because Congress doesn't always have the expertise to be that explicit. From that standpoint, the Court has claimed a power while acknowledging there is very little in terms of a check on that power.
Yes, that's my point. An agency interpreting the law that governs their mandate is at least nominally trying to do so in a manner that yields effective policy, but that's not really a goal of the courts, so letting the courts defer to the agencies probably will produce better policy then leaving it up to case law.
> An agency interpreting the law that governs their mandate is at least nominally trying to do so in a manner that yields effective policy
Ideally. In practice ambiguities in statutes governing agency mandates are always interpreted by agencies in whatever way would maximize their own options and power. That's the written justification for the APA in the first place: reeling in excessive "zeal" amongst administrators.
The courts don't get powers from the law directly (except meta-powers like the one this case is about), so there's no direct benefit to judges from interpreting law in a maximally agency-advantageous way. That's why countries (not just the US) have courts resolve ambiguous law. It's a core part of their job.
Yeah, but giving too much deference to agencies is also a recipe for peoples' rights to be trampled by a regulatory agency acting unlawfully. Acting in accordance with their policy goals is fine and all, but they still have to do so within the bounds of the law and if they're losing at the District level because they can't rely on Chevron deference anymore, I mean, that's completely fine. Go back to Congress.
How does this ruling fix that issue when the court admits it’s impossible to avoid ambiguous laws? Now it’s just unelected justices deciding instead of unelected agency bureaucrats. I think there’s an argument that could be worse, given the lifetime appointments of the court; at least the people have the chance to course correct the executive branch every four years.
I think we can all agree that the best solution is unambiguous laws, but that’s an impossibility by the courts own admission. Chevron already had a mechanism to prevent agency overreach by giving the court discretion to determine the reasonableness of an agency interpretation. This now just puts the onus on the court to do it all, and they admit they don’t have domain expertise. I fail to see how that is a better solution.
The great thing about an adversarial court system is when the challenge before the court is that a private party is challenging the agency’s interpretation of the law, they have to make their own case about it and convince a Judge that they’re right and the text of the law is available for all to read. Given that agencies are charged with enforcing the law, they should know the laws they are enforcing and their own authorizing statues better than anyone, and if that’s the case, they are still arguing from a position of strength. What’s changed here is that a Court is not obliged to defer to the agency’s interpretation in most cases.
I don’t want the domain experts to have an easy time of it. The law is not their convenience, it is for the peace and prosperity of the Republic, and given that Agency interpretations can change on a dime (up until recently) with almost minimal justification from a new administration, I don’t want to defer to staff who are charged with interpreting laws in a way more favorably for their new bosses, even if it goes against how they did business under their old ones to have an easier time making their case in court. The law should be more concrete than some mere electoral promises and wishful policy-thinking.
I just to work for one of the leading expert witnesses in the country. Expert witnesses are just advocates, hired by a client, who know how to throw fancy words around in a soothing, confident manner that makes the listener feel smart.
Nobody has a career as an expert witness for long if they go against a client's wishes. There is no such thing as an impartial expert witness in the current system. They're all hired by one side or the other. They're basically subject-matter expert lawyers.
> There is no such thing as an impartial expert witness in the current system
You're saying a form is bad because it doesn't line up with how it ought to be (you said "impartial"). But in saying so, you imply there is an ought. That is the real form (what it ought to be): an impartial expert witness.
When a form only presently exists in an abuse thereof, that doesn't necessarily invalidate the form as a worthy pursuit.
History can tell us whether such a form is worth pursuing. Expert witnesses in the US have been more or less impartial in the past. Communism has never been achieved, and its pursuit has never led to well-being of the people. Both are "ideal forms" in a philosophical sense, but history bears out which is worth pursuing and practically achievable.
So my take is that what's needed is reform of expert testimony through congressional law, including independent review of DAs, to ensure they prosecute expert witnesses who failed a legal impartiality test.
Expert witnesses are already required to be impartial. There's currently an inquiry in the UK over a massive miscarriage of justice caused by an expert witness going rogue and letting prosecutors put words in his mouth, etc. A big part of the scandal is that prosecutors were meant to inform him of his legal duty to be neutral and share all the facts, but they didn't, so now he's claiming he didn't realize he was required to share all relevant facts including those negative for the prosecution.
There's a difference between a requirement and its enforcement.
I'm arguing for better enforcement via law, to ensure witnesses are either impartial or prosecuted for impartiality.
If partial witnesses aren't being prosecuted, then launch an inquiry and do a causal chain analysis. It's bound to turn up a root problem that is solvable.
This is a common philosophical/ideological difference.
The left tend to argue that impartial people exist, and that they are numerous/easy to find.
The right tend to argue that there's no such thing as an impartial person, that you can get people who start out partial and do their best to be fair (e.g. judges) but it takes constantly training, reinforcements and incentives to do that and there's always the danger of slipping back. You definitely can't assume it.
The adversarial court system is based on the right-leaning belief: although expert witnesses are told to be impartial, the system doesn't assume this is enough and so witnesses are called by one side and cross-examined by the other. The lawyer's job is to sniff out any signs of bias or incompetence.
> This feels like one of those topics that may sound ok in theory, but breaks down in practice. The implication is that the judges must be well-versed enough in any domain brought before them to interpret the laws effectively
No -- subject matter expertise is not relevant per se, as what is being evaluated in these cases is not whether the policy advanced by a given agency is sound on its technical merits or factual basis, but whether it is within the bounds of the authority granted to that agency by the applicable statutes.
The courts aren't concerned with "crafting effective regulations", they are concerned with ensuring that the people who are tasked with doing so are operating consistently with prevailing statute law and the constitution.
And, considering that the judiciary is staffed with the world's foremost experts in statutory interpretation and constitutional law, this arrangement makes sure that all of the disparate facets of the process are being undertaken by the most qualified people available.
It's not appropriate to make officials who are hired on the basis of their knowledge of medicine, RF transmission, economics, etc. to bear the entire burden of determining the complex legalities of their authority. They have to step far outside their field of expertise and engage in textual analysis of statutory law or delve deep into constitutional theory to determine whether their rule-making process is indeed legally permissible. It's better to let the courts do their job here and tell them when they are out of line, so they can focus on doing their own jobs properly.
Maybe I’m misunderstanding, but what you’re describing sounds like what I thought the case was before this ruling. The courts were deciding on the reasonableness of the agency interpretation. Now it sounds like the court is interpreting directly. To do the latter effectively, I still maintain you need a solid expert understanding of the domain.
It sounds like we disagree on who is better equipped to make the kinds of interpretations necessary for effective policy. Like I said in another post, I don’t think we can pretend law can be abstracted and cleaved from the systems it regulates. The court admits they don’t have expertise in those systems. That makes me feel they are ill-equipped for the types of interpretations.
What you had understood and what he's describing is the situation pre-1984 and now post this judgement.
I think a lot of the reason this thread has blown up is that the Chevron doctrine was really very strange and not at all how you'd expect the US legal system to have been working. It doesn't line up with any standard teaching of civics, for instance. The Supreme Court clearly felt the same way and has now instructed courts to go back to doing what everyone thought they were doing already.
I don’t know that I agree. It’s exactly the understanding I was given from an engineering law course, for example. Prior to this ruling, the regulatory agencies were given latitude to interpret ambiguous law as long as they were determined reasonable by the court. It’s also what I think most people understand, given the way people rail against agencies rather than statutes.
To be clear, I think there is a distinction between declaring if a law is constitutional and resolving ambiguities for non-constitutional, domain specific issues. I think the court is eminently qualified in one area, but much less so (by their own admission) in the other. I think those are two different aspects that often get conflated.
Yes, you are misunderstanding. Chevron obligated the courts to defer to agencies' own internal interpretation of statute law whenever any ambiguity arose as to what the law said. Reversing Chevron has restored that function to the judiciary, where it belongs.
I’m not misunderstanding then. Chevron still deferred interpreting ambiguity to the agency, but the courts could still check that based on a reasonableness standard. Now the court gets both aspects. Our difference is that I think that is a less good outcome because I believe domain expertise is necessary to effectively clear up ambiguity and the court admits they do not have that kind of domain expertise.
I think the court should reserve power for constitutionality (their domain expertise) and leave resolving the ambiguity outside that to the regulatory experts of those respective domains.
> I’m not misunderstanding then. Chevron still deferred interpreting ambiguity to the agency, but the courts could still check that based on a reasonableness standard.
No, you are definitely misunderstanding. Chevron delegated a core duty of the judiciary to executive branch officials with no expertise in that field. The "reasonableness" standard you was a limited and constrained version of reasonableness standards devised and applied by courts in normal statutory interpretation, and deprived the courts of the power to fully exercise their duty.
> Now the court gets both aspects.
No, there is only one aspect here.
> Our difference is that I think that is a less good outcome because I believe domain expertise is necessary to effectively clear up ambiguity and the court admits they do not have that kind of domain expertise.
The domain expertise of the regulators in the field of regulation is irrelevant here, because the cases that go before the court are not about what measures are likely to be effective in fulfilling the agency's mandate, it's about what measures are legally permissible.
> I think the court should reserve power for constitutionality (their domain expertise) and leave resolving the ambiguity outside that to the regulatory experts of those respective domains.
The only domain at question here is the domain of interpreting the law, and the relevant experts in that are the judiciary themselves. You are conflating together completely distinct matters.
If you’re claiming the courts have more non-law domain expertise than agencies, you’ll need some evidence of that for this point to land.
If you look to Chevron for a concrete example, the issue was about the ambiguity of the scope of a “source” of emissions. That is not a law question because the law already deemed that sources can be regulated. It’s really a question of non-law domain expertise in terms of the definition of an emission source.
> If you’re claiming the courts have more non-law domain expertise than agencies, you’ll need some evidence of that for this point to land.
No, I'm not claiming that. I'm not sure what that has to do with this discussion at all, though, because non-law domain experience has nothing to do with domain experience in interpreting laws.
> If you look to Chevron for a concrete example, the issue was about the ambiguity of the scope of a “source” of emissions. That is not a law question because the law already deemed that sources can be regulated.
Huh? If the law says "sources can be regulated", then the question of what the statute means by "source" is 100% a legal question of statutory interpretation!
> It’s really a question of non-law domain expertise in terms of the definition of an emission source.
No, it absolutely is not! Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to. It is 100% the role of the courts to analyse the statutory text written by Congress and determine whether the agency is or is not operating within the authority that Congress established.
>I'm not sure what that has to do with this discussion at all, though
I would argue that is the central claim. Something can be law and ambiguous. The role of the court previously was to ensure the first part: that the law is Constitutional. Outside of Maybury I don't think anyone is disputing that. The difference is that this now says the arbiter of ambiguity is now the court.
Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality; that is a much more narrow scope than what you're presuming. In many (most) court rulings, they are very deliberate in keeping the scope as narrow as possible. This ruling is one of the exceptions, not the rule. But you don't have to take it from me. Justice Kagan states:
"Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not...In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar."
>Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to.
I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities. Again, the role of the court is best suited to what they have expertise in: determining constitutionality. Defining what an "emission source" (or any other domain expertise question) is outside that scope.
I would argue that becoming an "administrative czar" oversteps the bounds of a judiciary responsible for determining constitutionality to one that blurs the lines with the executive branch. In Kagan's words, it becomes an act of "judicial hubris."
> The role of the court previously was to ensure the first part: that the law is Constitutional.
No. The role of the court is, and always has been, to determine what the law is -- constitutional law, statute law, common law, all of it. Forget Maybury and think Marbury. Chevron was an unjustifiable deviation from what has been the unambiguous responsibility of the courts for the entirety of their history.
> Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality;
No, as above, the courts role is determining the meaning of the law. The constitution happens to be the supreme source of law, but it is and always has been the courts' job to interpret law from all subordinate sources as well.
> I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities.
I'm not sure what you are saying you don't think is correct. No one claimed that Congress makes perfectly unambiguous laws -- that is impossible. Rather, Congress passes statutes using specific verbiage, and the responsibility for -- and expertise in -- interpreting that verbiage and clearing up ambiguities is and always has been the domain of the courts, and absolutely not the unaccountable province of people with no expertise in statutory interpretation who have an inherent interest in interpreting their own authority to be as expansive as possible.
I misinterpreted your saying Congress uses specific verbiage to mean that wording is sufficient to avoid ambiguity. You keep repeating the same thing but not really addressing the core point.
I fully acknowledge the difference in opinion here. One side thinks the court has the duty to clear up ambiguity. The other thinks that better resides in the agencies. It’s literally the difference between the ruling and dissenting opinions of the court decision.
My claim is that in a modern society, clearing up that ambiguity requires domain expertise. Just hand waving it away and saying “this is the way it’s always been” (even though that’s not true since that wasn’t the case for the last 40 years) doesn’t actually address that point. So in your opinion, do the complexities of modern society not matter? If not, you’re implying we can bring back a Justice from the 1790s and they can effectively rule on issues related to climate change, the internet, genetics, pharmaceuticals etc. After all, they don’t need any domain knowledge. I disagree; I’ve steelmanned your argument elsewhere in this thread and still find it lacking. The point isn’t “to do things like they were always done before” but the “create a more perfect Union.” I think allowing domain experts to clarify complex issues, within the confines set by the court, is a better system and you haven’t done anything to explain why it isn’t. It comes across as much more about ideology than effective governance.
This is the Supreme Court that has repeatedly made subject-matter related arguments (particularly historical arguments) while ignoring the input of subject-matter experts.
As a legal dilettante I have some questions: What does this decision mean for court caseload going forward? If it will increase, how much? Is there budget for that?
There seem to be a lot of posts in this thread that are misinterpreting what the judgement means. Here's what I understood from reading it:
• This case does not affect Congress' ability to delegate defined lawmaking powers to the executive. Congress can continue to delegate whatever they want.
• It will therefore not have any impact on the speed with which the US government can pass laws.
• It does not award the courts any new powers.
• What it does is go back to the pre-1984 system in which the meaning of ambiguous rules were decided by the courts.
• It does so on the basis of a specific law called the APA, in which Congress spelled out that the courts should defer to agencies on matters of fact, but does not say courts should defer to agencies on how to interpret ambiguous law. Also that law was passed specifically to limit the powers of the executive. So, their ruling seems founded in the will of Congress.
Because ambiguous rules would have to be decided on anyway, and they were already being decided in the context of a court case, this won't affect the number of cases being decided.
I think the only way to attack this ruling would be to show that there was some law that superceded or replaced the APA, or that the relevant section of the APA itself was unconstitutional. But why would it be? As the court points out, the fact that ambiguous law is interpreted by the courts is a very old and unremarkable arrangement. The Chevron decision was the radical deviation from normal practice, reversing it just puts things back to how most people already think it works.
Case load is simply the number of active cases and therefore not limited to the number of cases but also includes how long each case takes to complete.
As this requires judges to consider a wider range of options it inherently means these cases will take longer thus increasing caseload. Further, it also means bringing these cases before the court will get more expensive as individual cases take longer.
You're assuming that judges are slower to resolve ambiguities than regulators are. My experience with regulators has been that often they not only let the law be ambiguous for years despite repeated requests for them to make a decision, but are then fond of retroactively and suddenly "clarifying" things in response to shifting political/media winds. Nor do they feel any obligation to be consistent with past rulings.
Courts are at least expected to make progress on cases as they are brought, to be roughly consistent with past case law, and they aren't allowed to just refuse to make a decision for a decade and return to it when it's suddenly in the newspapers.
None of what you mention really applies to specific court cases.
A judge can either defer to the agency involved, or spend a while digging into the underlying intent etc. The second may be “Better” or “Worse”, but if nothing else the first is faster.
It takes away power from the legislative and executive branches because it now requires an onerous level of specificity to regulate something. This decision will have lasting negative consequences.
Another user has raised the other side of my question, while exaggerated, is this more accurate as to what will happen than the thrust of my original question? Do we need to increase the budget for Congressional aides?
> The Roberts Court just decided to increase Congress' workload 100000x
No, again, I don't understand where commenters are getting this idea from. The ruling does not require laws to be unambiguous. It only changes who is responsible for resolving ambiguity (changes it back). The entire system will do about as much work as it was doing before. At a stretch, you could say that maybe some funding would need to be reallocated from regulators to the courts, but one would hope that "cost of interpreting ambiguous laws" is not a meaningfully large line item in the US government budget.
Now leaving the specific judgement aside for a second, IMHO - not worth much as an outsider - Congress certainly should write more precise laws and maybe hire more aides to help them do that. All governments could do better on that front. Clear law is worth its weight in gold for creating a stable and prosperous society because when people know what they can and cannot do it's less risk to create new companies, less risk to create new products, and less time is spent in courtrooms arguing disputes caused by ambiguity. A lot of people commenting on this thread seem to fear a general breakdown if lawmakers are required to do a better job of writing law, but my personal experience of regulation (limited but not zero) has been that laws that have gone via a parliament or Congress are already higher quality than administratively issued regulations. The idea that the former are written by incompetents and the latter by experts is an intuitive one, but doesn't seem to be borne out in practice.
Also, as a general aside, I think Americans should appreciate Congress more than they do. It's popular to take a dump on them but if you compare to other governments around the world US law is fairly high quality. A big part of the success of the US economy and tech industry is related to what Congress does and doesn't do. For example the DMCA was unpopular when it passed but it laid the foundation for the dominance of Silicon Valley today. Apparently most Americans like their own Congressman/woman even whilst feeling the institution itself does a bad job, but this may just reflect the fact that America is very large and diverse, so inevitably a talking shop where people from different parts spend all day disagreeing with each other will seem dysfunctional.
I think you are missing the big picture. This ruling is setting the stage for a new regulatory regime. The lower courts see where this Supreme Court is going and they are going to overturn any regulatory ruling that has any semblance of ambiguity in the underlying law. What matters is the direction the court is going and what it is signaling with this ruling.
By the way, requirement of minimising ambiguity, and explicit limitation of delegation are not specific to the US. High courts of many other countries enforce this very standard.
What other countries do is not something I care about as far as SCOTUS goes. We don’t have parliamentary system that most other countries have and rewriting 40 years of legislation in the U.S. is lot harder to do in than in most other countries.
This ruling doesn't say courts have to overturn decisions based in ambiguous law, it says the courts have to make up their own mind about the decision. That decision may also be that they agree with the agency interpretation and choosing to uphold it.
The lower courts see where the Supreme Court is heading and they will rule accordingly. I could be wrong. In a few years I think you will see that I’m right.
>Because ambiguous rules would have to be decided on anyway
I think the implication by the OP was that they would now have to be decide by the court instead of by the executive branch agencies. Previously, those agency decisions could be brought to the court, but they didn't have to for an interpretation. That seems like a subtle but important nuance.
It won't affect caseload so much as it will affect the balance of power in settlement negotiations. Source: I used to be a lawyer who worked in a heavily regulated field.
From my understanding of political science classes, this is how the founders wrote it to be.
Actually, it's supposed to be like this…
Congress writes laws. Executive interprets those laws and decides ambiguities on its own. Some of those ambiguities are contested so courts decide the outcome. If that court’s outcome is contested, then Congress makes a new ruling explicitly stating what they want. Then it repeats.
It’s a cycle of checks and balances that is supposed to loop back into itself.
> It’s a cycle of checks and balances that is supposed to loop back into itself.
Except that the US doesn't have a functioning legislative branch, so the corrective feedback action never happens. The justices who are making these rulings, and their clients, are very well aware of this.
Then the voters should kick the bastards out. That's the biggest check on the legislative branch, it has pretty fast turnover.
Now, if you have a population that doesn't want to elect lawmakers who will actually pass laws...well, that sucks, but it's kind of working as designed.
>> Now, if you have a population that doesn't want to elect lawmakers who will actually pass laws
The population as a whole _does_ want lawmakers who will pass laws, however that collides with the structural misrepresentation built into the US electoral system.
The fundamental problem with this statement is that it assumes both sides of the coin are the same. However, it's far easier to block legislation in the current system than it is to get it passed. Combine that with the hyper partisanship of recent years and you have a recipe for legislative paralysis.
Now, if we didn't have the filibuster or senators were assigned based on population, it would be a different matter. Suffice it to say that we already have a pretty big check on govt power via these mechanisms, so the conservative talking point of preventing 'overreach' by government rings hollow.
>>>that collides with the structural misrepresentation built into the US electoral system.
I never know quite how to respond to this, because (as an outsider) the US electoral system has been designed in a way that is misrepresentative but for very clear reasons.
Part of the 'pitch' for the smaller states to join the union was that they would retain some power, mostly via the electoral college and senate (yes, they still get over-represented in the house, but less so). If the pitch was "you get nothing and we can bulldoze your state" Wyoming would have just said "no thanks, we'll stick to ourselves/join another union". If you think of states as entities worth protecting, assigning senators per state is quite reasonable.
Fast forward two hundred years and we have a different view of states, care more for the individuals inside them, and it indeed seems unfair that Wyoming and California both get 2 senators. What's the fix?
It doesn't take a whole population to grind the process to a halt - just a legislator or two, and not passing legislation is just as important to some voters as passing legislation is to others.
It only takes a legislator or two because of the policies and procedures the other legislators agree to. They are free at any time to change their rules of procedure. A filibuster without requiring actual filibustering is a process congress agrees to have, not something prescribed for them from on high. Almost their entire process is something they have all agreed to, if congress is easily deadlocked by one or two legislators, it is because congress does not want that to change.
The problem is that we have FPTP elections which mean the alternate candidates are non-viable. Anyone who can fundraise for a successful primary campaign has enough ties to moneyed interests to become part of the swamp.
It really doesn't, but I understand this is a very popular albeit destructive way of thinking.
There is much more to you as a member of society than your single vote. You get to vote for many people in many different elections. You also can get civically engaged in many different ways.
This is just blatantly wrong. Look at how many votes it takes to seat a Wyoming senator versus a New York senator. Look at the electoral college. Look at the frozen House of Representatives size and the further imbalances this creates in favor of low population states. The compromises made to appease slave holding states have had long lasting repercussions on this country.
The electoral college is the reason that several presidents over the last 40 years have lost the popular vote and won the election. George W. Bush was one of the first presidents to do this. If you combine electoral college votes by population with our system of winner takes all then a few very agitated rural areas in a state with few populous cities can completely dictate the outcome of the election.
> There is much more to you as a member of society than your single vote. You get to vote for many people in many different elections. You also can get civically engaged in many different ways.
Civic engagement requires more than filling out a ballot
As explained in the dissent, they literally have to delegate the kind of authority in question here. It’s the hostile-genie problem: you can’t close all the loopholes in some iron-clad unambiguous way in finite space.
those loopholes and ambiguities should be left to the courts to decide with representation from both sides of the argument making their case and not some department head full of political bias and possibly an axe to grind favoring one side.
This assumes a US Supreme Court that doesn’t exist in 2024. If you want it changed, you would have to either wait till the judges change, or expand the courts.
No, their role is a lot larger than that and plenty of legal questions don’t hinge on this kind of thing. This is specifically about whether to tend to defer to agencies on the interpretation of definitions of terms and similar things related to their mandate, so long as they remain within the bounds of reason and plausibility.
A judge could go “nope, per Chevron this EPA interpretation of ‘pollutant’ looks reasonable in this context, that complaint is dismissed, but the rest of the suit may proceed”. Now they’re expected to let those arguments play out. But answering that particular kind of question definitely is not the whole point of the judiciary.
It seems crazy that Congress does not have the authority to delegate implementation details to experts. I just don't see anything in the Constitution that forbids that.
Exactly, only when convenient. A glaring example of this is when they decided that section 3 of the Fourteenth Amendment did not disqualify Trump from the ballot. The plain language is not complicated:
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No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
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Note that this amendment provides a legislative remedy: Congress can remove the disability by a two-thirds vote. Textualism, but only when it serves their purposes.
But that’s the point! The liberal justices could rule by taking into account any number of contingent factors established by decades of precedent. But the strict constitutionalists - the conservatives - should have ruled according to the text of the constitution, which is what they constantly claim they are doing. Except it seems to be just when that happens to coincide with their ideological priors.
> The actual ruling was NOT an "textualist" interpretation at all.
That’s precisely my point. They are textualists when it’s convenient. When the textualist outcome would be unsatisfactory from an ideological perspective, then they aren’t textualists any more.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Anything short of "all" contradicts that.
Now you need to find somewhere that says "Oh, btw.. we didn't mean 'All' but really 'some' because Congress might give some legislative powers to other branches."
That doesn't seen like a reasonable interpretation. The power is vested in Congress, so they can use it. Delegating authority to an agent is not exactly novel and it definitely doesn't somehow mean that Congress no longer has that power.
So if I give you complete authority to design and implement a new exommerce system, it means you must do it single-handedly with no delegation to anyone?
This “anything not expressly allowed must be forbidden” is the exact opposite of how US law works.
Do you understand the implication of the answer to that question being "No, and it cannot delegate those powers"?
Congress would have to vote on giving approval for each new drug, not the FDA's bureaucrats.
Congress would have to vote on each individual edge case for welfare programs (SNAP, Social Security, Medicaid, etc), not their respective agencies.
Congress would have to vote on which individual people get Pell grants, how much, and how much their parents are expected to contribute to their university schooling, not the Department of Education.
Congress would have to vote to approve contracts for every federal agency.
The federal government would not function without some degree of delegation.
You don't change the law every time a new drug gets approved, you grant it certification (the framework of which is based in existing legislation). You'd only need Congress to get involved if you wanted to change the approval process itself
The constitution arguably wasn't designed for a government that did much of what it's doing. Shouldn't be hard to pass an amendment to legalize it if it's that necessary right? We needed an amendment just to federally ban booze for God's sake.
The problem I have—even with a functional Congress—is that laws will be passed with political kickbacks in mind. Irrelevant nonsense like dairy subsidies tied to telecommunications regulation to secure the necessary votes.
If you ignore the labels here, it's a small group of lawyers giving themselves more power because the large group of politicians can't get their act together and pass well-reasoned and descriptive laws.
So the large body isn't functioning well and the small body doesn't trust it anymore. So if we make the small body (the supreme court) large like the large body (congress) will that actually fix the issue?
Isn't the issue that politicians are corrupt and ignorant of actual expertise in the areas of the laws they pass? How will the Supreme Court overcome this same issue?
Congress may be inefficient (by design, basically) but they have one advantage: they're elected. Everyone fantasizes about government by an unelected group of experts, until they wake up one day and find out those unelected experts don't share their values at all -- and there's nothing they can do about it.
This implies the common false dichotomy though that public officials can only be either: elected in toxic, wasteful campaign cycles every 4 years; or completely independent of public oversight. Those aren't the only two mechanisms that exist to develop an administrative apparatus. They are actually two points on a spectrum, and in fact closer to being at either end of the spectrum.
One, quick example: You can have appointed experts who can be recalled by public input but never have to campaign for election. I'm writing this in short minutes with zero research so be assured there are countless possible systems that exist in the infinite space between the two binary options implied by your dilemma.
In other words, being elected to office is not the advantage of congress. The advantage we seek is public accountability. Public elections are a pretty fucking poor proxy for accountability though because we end up with single-issue voters acting out of rage and electing people who are specifically inept at their job.
> Everyone fantasizes about government by an unelected group of experts, until they wake up one day and find out those unelected experts don't share their values at all -- and there's nothing they can do about it.
When your opponents are lying, cheating, and breaking their own made up rules (no supreme court nominees during the lame duck session unless nominated by a Republican) your characterization is uncalled for.
Yes, the right have been doing it for a long time and it works. Either make it stop working, or copy the thing that works. Don't just handicap yourself to a guaranteed loss.
The rules are that the executive can appoint judges. Right wing executives take advantage of this rule. Doing the same from the other corner seems reasonable too. The failure to do so means that the Democratic party is incompetent, uninterested in enacting their own alleged policies, or some combination of the two.
Some people say "if you're not cheating, you're not trying" but this is even a level removed. This is a perfectly legal move that they've denied themselves for no material reason.
Appointing people based on party loyalty is always cited as one of the major reason the Soviet Union became a slow-motion train wreck. It's not something America should emulate.
Not to mention that packing the courts could well be interpreted as an open attack against the separation of powers
superficially this argument seems reasonable.. but my limited understanding of the history of the Supreme Court of the United States says that there have been substantially different eras, and substantially different rules in those eras, for this same Federal body. Needless to say, in a "two party" political system, the details of what each of those two parties represents has also changed dramatically.. i.e. what is called conservative has changed quite a lot, many times.. same with "liberal"
The issue is that the "ethics and morals" of the powerful are in reality weapons pointed at working people. If using state power gained through elections to improve the lives of the people who elected you is immoral or unethical, your system of ethics is a farce.
Indeed they have already done so - many left-wing voters are swearing off voting for Biden, over his support for the Gaza genocide. This guarantees a Trump victory.
You may trust the nation's top lawyers more than Congress. But in recent decades those lawyers have been picked for ideological purity in a process that distills what is bad about our political process. As a result I now trust Congress more than the Supreme Court. And not because I trust our broken Congress more than I used to!
> I would trust the nations top lawyers more than most of the congress members we have
If you're referring to the justices, who are approved by those Congress members you don't trust, it is a dramatic stretch to assume they are the nation's best lawyers.
There's no federal constitutional requirement for anyone to have legal training or certification to practice law in the USA.
The requirements to practice law in the federal system are set by the judiciary itself. This dates back to England where getting "called to the bar" meant the judge giving you permission to go to a physical bar separating the spectators from the court.
It wouldn't make sense to mandate judges to be lawyers if they decide who is and isn't a lawyer. That would give the judicial branch control over their own appointments.
This is taking power away from regulator bodies like EPA that enforce the laws and giving it to the courts... taking the enforcement out of the hands of the experts.
How is it "taking the enforcement out of the hands of the experts?" Judges are supposed to be experts on law. That's literally their job. If the parties before them feel that they need expert knowledge to render the right ruling, then they need to take those experts and either depose them or have them testify. Expert witnesses are a thing; this is not some new idea.
> How is it "taking the enforcement out of the hands of the experts?" Judges are supposed to be experts on law.
Because the laws are about particular things in the real world that have nothing to do with the legal system. They are frequently about scientific matters, for example. What constitutes a threat to public health? What constitutes pollution of a waterway?
When Congress authorizes an agency to maintain, say, clean drinking water, it entrusts scientific experts to determine, based on the most up-to-date evidence, what constitutes a pollutant that is harmful to human health. We do not need Congress to pass a new law every time we get new scientific evidence that a particular chemical (say, PFAS), is harmful.
They did do that, every agency exists with a mandate.
SCOTUS just decided that despite the madnates existing, being funded, and being regularly renewed, that's not good enough.
But they haven't defined how specific the mandate and laws must be. They can just, you know, keep shifting the goal posts until they get the desired result.
Because this is not law in terms of billy having stolen a bushel of apples, and the expert is not called on to evaluate the value of the apples in order to determine whether billy is below or above the line for a class 3 misdemeanour.
The statutes regulating agencies are generally broad signposts, giving the agency a mission statement and a direction but leaving it a large latitude to implement it and decide on the details. That latitude has a legal implication since the agency is generally responsible for setting and enforcing standards.
The Chevron Deference is the legal doctrine that since congress delegated its power to the agency as matter and implementation experts, the agency's policy decisions should be deferred to so long as:
- it's legally ambiguous aka congress has not answered the precise issue themselves
- it is a permissible construction of the statute
The entire point of the chevron statute is that it's not up to the judicial branch to set government policy, and if a problem is a legal void then they have no authority, and unless and until congress makes a specific decision the agency does.
The US is a constitutional republic, not a dictatorship of experts. Go to Singapore if you want that.
What I find funny is how the court is simply asking Congress to do their job - be clear in the intent of how laws should be executed. None of this "well, I'll leave it up to unelected bureaucrats to decide" and people think this is somehow a bad thing.
"is a legal test for when U.S. federal courts must defer to a government agency's interpretation of a law or statute."
The idea Congress could pass a law "you can't pollute", and then a all of the legal details behind it aren't actually a part of the law, but rather "administrative decisions" by unelected state apparatus is a run-around of the system.
Congress can still pass such laws, and bureaucrats can create rules. The only difference is now the courts can overturn their interpretation.
Because congress cannot predict which new chemicals will be invited. They cannot act quickly enough to actually adapt to realities of the world today.
Is CO2 a pollutant? Who decides? Congress or scientists? Judges or scientists?
Now do that for every tiny detail of every part of every law.
It is computationally intractable to write laws specifying every possible scenario and exactly how an agency should act.
I don’t think you realize that these laws were passed with the understanding that agencies would fill in these gaps. Congress wanted these agencies to make these decisions at the time these laws creating said agencies were passed.
But, this decision didn't take those powers from Congress. It took those powers from federal agencies. Congress empowers the agencies, yes. But, Congress also deferred any technical decisioning to the agencies. Those agencies are filled with actual experts who are fully committed to their field. Now, the court just said that those experts aren't the right place to enforce anything but judges are.
>Personally, I would trust the nations top lawyers more than most of the congress members we have. However, it doesn't take much imagination to see the new issues that could arise)
Good luck with this.
At least these corrupt politicians come to face the music every four years.
> because the large group of politicians can't get their act together and pass well-reasoned and descriptive laws
How do you figure? This ruling says that Congress must be domain experts in every area, and agencies must merely implement the specific policies that Congress dictates.
Is that even possible? For anyone? Sure, Congress is dysfunctional but so what? This new regime is unworkable, and it doesn't matter if it's dysfunctional politicians or "top lawyers".
People on this thread are talking as if this decision stops Congress delegating powers to the executive, or the executive drafting laws for Congress to pass. It clearly does neither.
It's actually constitutionally entirely reasonable to demand that lawmakers are the people who make law, because there's no specific reason to assume that the volume of laws should naturally drown the people responsible for them. But even if you do assume that, nothing in this judgement would restrict the volume of laws passed in any way. It's just not about that at all.
The "volume of laws" required to regulate a complex modern society is far greater than that required for the US 200+ years ago. Thats why successful nations use rule-making agencies to regulate commerce, environmental protection, workplace safety, etc. Expecting the legislature to do it all is just not going to scale - which I suspect is the objective. The people behind these decisions want an overloaded, ineffectual legal system because that creates the best conditions for unrestricted accumulation of wealth and power.
I think you're missing the ideological motivation. It's all about ensuring a healthier system of checks and balances. When courts are forced to defer to unelected bureaucrats, they serve basically no purpose - yet our entire legal system is supposed to be predicated on checks and balances at all levels. By returning the ability of courts to hear and legally judge the merits of law, at their discretion, you help maintain an overall healthier system of checks and balances.
It all comes down to centralization vs decentralization. In a completely decentralized system you will never have an amazing outcome, because there will always be plenty of people doing stupid things - this includes judges. Yet you will also never have a horrible system, for basically the same reason - there will always be plenty of people doing 'smart' things. By contrast, centralized systems can yield a complete utopia under the oversight of socially motivated, intelligent, and highly capable leadership. Yet they can also yield the most unimaginably horrific dystopias under self centered, foolish, and incapable leadership.
So which does one prefer? In the end I suspect this is one of those issues where we all think other people think the same, but they most certainly do not. I personally could not imagine anything other than a system decentralized, to its greatest extremes, in every way imaginable. Because if I look at the political types of modern times "socially motivated, intelligent, and highly capable" are not generally the first words that come to mind.
> The "volume of laws" required to regulate a complex modern society is far greater than that required for the US 200+ years ago.
I'm not going to get into debating this directly, but please be aware that arguments about the complexity of society are ideological in nature. It's not a simple factual matter on which there's widespread agreement. Many conservatives don't even agree with the premise that society has such a thing as complexity, or if it did that there's a higher level today than in the past.
The desired effect is to break the federal government so states that want to e.g. pollute the environment and leave the poor uneducated can do so without interference.
But that means they would never be done with any law. Rather than creating the EPA in the 70’s and funding and authorizing it to do its thing, every session of congress would have to consider every topic that comes before the EPA every year.
This might be a cynical view of things, but I think it's planned, rather than a happenstance result of dysfunction. Gosh gee Willikers, the fellers in congress just can't get anything done ¯\_(ツ)_/¯
It's no coincidence that Republicans simultaneously obstruct congress AND have a well-oiled machine to get their political allies on the bench. The playbook is like this:
- The Federalist Society establishes a pipeline of ideologically consistent judges. From law school to the supreme court.
- Congress blocks anything and everything on the legislative, so that any actual new change to the laws of the land come from new interpretations by the courts.
- This bloc in the lower courts works to bubble up good cases when they come, to get them before the higher courts.
- Every time there is a Republican in the executive, they appoint as many judges as they possibly can from this ideological bloc [1]. This ensures that a good case, when it comes, has a clear path from the bottom (local) courts to the top (supreme) court. The merits of appointees do not matter in the selection process - only a pledge of ideological fealty.
This project has been actively working for decades to change policy. There is nothing like this on the other side of the aisle. These are lifetime appointments. You cannot win on "good faith" against tactics like this. "Good faith" is insisting that the Judicial is "not political," it's not stepping down when it's politically opportune to do so.
[1] "At the 2018 Federalist Society gala, Orrin Hatch, the former Republican senator from Utah, declared, to the crowd’s delight, “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!’”https://www.nytimes.com/2020/05/20/opinion/trump-judges-fede...
Obvious check #1: Congress gets its sh*t together, and stops writing endless vague blather into law.
Obvious check #2: Congress enlarges the Supreme Count to 21 Justices. And lets the President know that his nominees for the 12 new positions will need to understand who's the real boss.
Why stop at 21, why not get 1 supreme court from each state? You could get 2 if you wanted to be spicy and setup a sort of room for them all to debate in. Then after they heard the debates they could vote on the matter and if it passes it gets written into law. A sort of congress...
Increasing the size of the court isn’t a slippery slope to somehow making justices elected by states/districts. It’s not like as soon as you get too many justices it turns into a legislature.
The interesting differences between the legislative and judicial branch is not the number of people (moreover, the Supreme Court is not exactly the entirety of the federal judicial branch).
I was thinking "enough to routinely overrule the current 9 Justices".
Representing individual states, as such, is supposed to be the job of Congressmen. And - with how low-functioning Congress is looking, these days, patterning anything new after them is probably a bad idea.
So Congress is dysfunctional. The Supreme Court is semi-functional, but functioning in a way that you don't like. So you want Congress to vote in a bunch of new people to fix the Supreme Court. Why do you think that will work, instead of be ruined by the usual Congressional dysfunction?
And, if the party in power adds enough Supreme Court justices to routinely overturn the current 9, what makes you think that when the other side is in power, they won't add enough to overturn your 12?
The Supreme Court is not supposed to bend with the wind of every political election. It's by design.
Particularly given McConnell's... Interpretations... Of how his obligated duties were fulfilled in regards to the timeliness of actions taken to ensure that such seats were filled.
Are you asking if it did bend to the right? You’re asking if an additional conservative vote shift in a hairline composition shifted the balance? Would you be asking the same if it was a 6-3 liberal majority?
This courts been in power for 8 years and has overturned 3 major ways that the government operates:
1. Roe v Wade overturned so that the government is back in charge of reproductive rights decisions instead of leaving it as a deeply personal decision for a family to make on their own. There’s pretty clearly a lack of any evidence that late term abortions are a cavalier thing. When it gets that late it’s not a change of mind thing 99.999% of the time.
2. Brady and similar decisions basically removing congress’ and states’ abilities to regulate guns
3. Chevron doctrine overturned so unless congress writes impossible laws the courts get to arbitrarily define ambiguities even though it was delegated to the executive to create justifiable well researched exposition of those ambiguities.
Basically, this court has already delivered 3 major decisions shifting American politics in pretty drastic ways in the 8 years. This is certainly not a liberal or status quo court.
And the court itself has serious perception issues of accepting gifts and bribes (and significantly reducing the definition of what counts as corruption in the first place, which is well outside their mandate considering these are actually laws congress passed). They’re badly in need of cultural reform as is congress and in both scenarios adjusting the number of representatives and the number of justices is called for to relieve the pressure that’s been building.
Don’t forget that they legalized bribery as well. Just so long as the payment is made after the fact it’s considered a “gratuity”. This court is making drastic long reaches changed and overthrowing precedent whenever convenient.
> The high court’s 6-3 opinion along ideological lines found the law criminalizes bribes given before an official act, not rewards handed out after.
> “Some gratuities can be problematic. Others are commonplace and might be innocuous,” Justice Brett Kavanaugh wrote. The lines aren’t always clear, especially since many state and local officials have other jobs, he said.
> The high court sided with James Snyder, a Republican who was convicted of taking $13,000 from a trucking company after prosecutors said he steered about $1 million worth of city contracts to the company.
Roe v Wade and gun control are pretty classical cultural war stuff from the 60s and 70s. I’m not sure where you’re getting it but the left being pro choice and the right being pro life are classical left/right distinctions in America since at least Roe v Wade or shortly thereafter. Similarly, gun control also became a classical left/right distinction once the left decided that gun ownership was a public safety problem and the right decided that personal gun ownership is enshrined in the Constitution.
Can you clarify how these aren’t left/right distinctions?
it removed restrictions on abortion, allowing local parties to decide for themselves, it seems constitutional but not partisan, RvW was also an abortion ban don’t forget
By what reasoning is RvW an abortion ban? It was a ban on abortion bans but that’s very different. The only restrictions Dobbs removed were those impeding bans. If you listened to the debate, Trump said pretty clearly he’s against late term abortions and if the right takes power next year a federal ban superseding local parties seems inevitable. So you have to jump through a lot of mental hoops to pretend like Dobbs was anything other than a step on the road to a full federal ban on abortions (first it’ll start at something like 16-24 weeks and gradually be shifted earlier and earlier and you’ll claim “well technically they didn’t ban abortions altogether”).
As for constitutional but not partisan, it was a 6-3 decision along ideological lines. And famously the criticism from the left of Roe v Wade was that it found protection in the wrong parts of the constitution - that it was based on privacy and physician rights instead of women’s rights. So you’d have to be willfully trying to deceive to paint this as a non-partisan issue.
You act as if this is the first time that expanding the court has been discussed.
Congress has yet to do this because it will never pass - at least unless one party gets a filibuster-proof majority in the senate or the filibuster is removed.
> And lets the President know that his nominees for the 12 new positions will need to understand who's the real boss.
And who, in your view, is supposed to be the real boss? Congress? Or the President?
The Supreme Court is supposed to be independent. Changing that needs a much higher threshold than "bell-cot doesn't like some recent Supreme Court decisions".
I have a fantasy solution that I know will never be implemented, but in my mind resolves all objections to expanding the court.
Promote all eleven judges in the DC circuit court of appeals to the Supreme Court and leave the appeals court empty. For each vacancy that occurs on the Supreme Court, the president gets to pick one judge for the appeals court, until the Supreme Court justice count is back to 9 and the appeals court judge count is back to 11; at which time things go back to status quo ante.
This would allow the Supreme Court to be rebalanced without the president packing the court with partisan choices. Rather, it respects the record of judicial confirmations for the appeals court going back almost 40 years and several presidential administrations.
It would increase the number of perspectives on the court and make the Justices work harder to find consensus, rather than the majority being able to lazily fall back on pet legal theories that are out of the mainstream.
It would counter and largely nullify the Republican strategy of targeting the Supreme Court with nomination of extremist and underqualified candidates with significant questions about their backgrounds, and confirming the nominees with dubious political maneuvering.
It would be hard for Republicans to escalate; i.e., if a Democratic president added 12 slots to the Supreme court, what's to stop a Republican president and congress adding 20 more at first opportunity, and so on. Republicans could choose to elevate another court's judges to the Supreme Court, but that would tend to further balance the Court and make decisions more unpredictable, rather than produce a clear partisan advantage.
It would take the Supreme Court nomination issue out of presidential politics for a generation.
Despite FDR being quite popular with his New Deal laws, his own party was prepared to toss his ass out for trying to stack the Supreme Court in order to keep parts of his New Deal alive.
It would be political suicide for either side to do that.
Complaining people have been suggesting it for a long time. They seem to be of the "anyone who doesn't agree with me is obviously either stupid or evil" type.
I'm with you, though, that it feels more possible than it ever has before. If it does actually happen, it's going to be a huge change. The Supreme Court will no longer have any believable claim of being unpartisan, and democratic norms will be broken in a much broader way than ever before (barring January 6).
So if it happens, take note. America after that won't be what it was before it.
There are so many things happening in America in just the past 6 years that it’s nothing like anything that has happened in existence - each year.
I have never seen an insurrection in America. Legislators in the American Capital had to be evacuated not from an invading army, but people with some plan to overthrow them. Trump alone is so dense with examples of “wont be the same” that I can only think of fractals when I try and list the things that have happened.
The US went through a civil war. A President was impeached. The US was defeated in a war in Asia. We had race riots every few weeks. National leaders were assassinated with alarming regularity.
The idea that the last few years have been "nothing like anything that has happened in existence" seems quite naive.
> Legislators in the American Capital had to be evacuated not from an invading army
And some even claimed to be there who weren't for political points.
Exactly, the statement is very telling of the lack of understanding of how our government is supposed to operate, how and why the system is set up the way it is.
Congress would have to agree that the power really belongs with them, and agree to limit the Court to only that which is covered in Article III. This is entirely plausible, but I think unlikely in the short term.
It sounds to me like they just gave the legislative branch some of it's responsibility back. Delegating their job to the executive branch of government has created agencies that make and enforce rules themselves, and ultimately operate at the whim of whoever the president happens to be at the time.
If congress wants to delegate details to experts they could explicitly state that in the law, and create their own organization of experts to do the job. Giving the president more power is not a requirement, and enforcement should remain separate. But even then, regulations shouldn't be ambiguous. The laws should state something like "food purity should be within %x of yada yada, where x is updated yearly by the appropriate agency" Then it's up to the courts to decide if the law was broken or not.
In the short term this could be a nightmare as companies flaunt all sorts of regulation, but I think overall it is a good thing.
> The laws should state something like "food purity should be within %x of yada yada, where x is updated yearly by the appropriate agency" Then it's up to the courts to decide if the law was broken or not.
This is kind of true, but also belies the depth of the Chevron change. In this example, plaintiffs can now, for example, challenge how the "X%" calculation is done. What's an appropriate methodology?
In the past, courts deferred to the agency: as long as it's scientifically valid + consistent, it's up to the regulator, not a judge. Now, it's up to a judge.
So if I sue and say "you should use a 0.01 alpha for calculations, not 0.05" for your X% calculation, then a judge makes the methodological decision, not the statistician.
IMO, it's not really reasonable for congress to design statistical methodologies as part of the text of a bill.
but if congress explicitly states that agency xyz will update specific numbers wouldn't that be pretty solid? As far as I can tell, this is just about leaving it up to the courts when things are ambiguous, which is kind of the point of courts.
Sure, but "EPA to determine methodology, including statistical parameters" is still ambiguous.
What's the process for determining the methodology? Would another process have been better? Does the plaintiff's proposed approach for methodological determination also conform to this law?
In this case, "how to go about determining methodology" is left ambiguous, and is now the province of the courts, not the EPA.
The only checks involved were in the mail, and almost certainly addressed to Clarence Thomas, who has taken more in bribes than the last 30 other justices combined, and that’s only the ones he’s been caught on.
This is the Supreme Court that claims, "In the summer of 2023, Justice Samuel Alito told the Wall Street Journal that Congress has no authority to regulate the Supreme Court, despite the ethical regulations Congress already imposes on the justices" (https://www.brennancenter.org/our-work/analysis-opinion/alit...) and that does not have any binding code of conduct.
That’s exactly the argument of this (exhaustive) Harvard law review piece from 2022, that the sole pattern of the supreme courts decision making is that it accrues power to itself at the expense of other branches of government
> Chevron is probably the most frequently cited case in American administrative law,[16] but some scholars suggest that the decision has had little impact on the Supreme Court's jurisprudence and merely clarified the Court's existing approach.
The judgement discusses that. Previously in cases where a statute was ambiguous the courts interpreted it. Chevron changed that to allow the executive to interpret ambiguous laws, but the judgement argues that interpretation of the law is and always has been the role of the courts.
Others have said this using different words, but I'm going to chime in anyway. I don't think the courts will have more power. SCOTUS is saying that congress needs to actually make clearer (better?) use of its power by being more explicit when legislating (i.e. when writing laws) instead of relying on the executive branch agencies (for those unfamiliar with the US political structure, agencies like the FDA, EPA, etc. are executive branch agencies that, ultimately, report to whomever is the current US president) to interpret and in many cases read into the laws that congress has passed.
The more practical reality of this ruling is, I think, this: there is no world where this is a win for anyone who believes in a bigger US federal government. This is a huge win for those people who believe the power of the federal government should be limited. It's likely the biggest challenge to the size of the federal government in my lifetime and I've been alive for a good bit. The dysfunctional congress that the US currently has makes it a certainty that in the short term countless regulations will be unenforceable and therefore this will be a picnic for anyone who is anti-regulation (note Trump in the debate last night where he talked about scrapping regulation. In comparison to this decision, Trump's regulation-slashing will look like he shot a rifle in comparison to the shotgun SCOTUS just fired).
Last comment: this SCOTUS has made it clear that the federal government will be massively restrained. There are two avenues by which they've made this clear: first, they have ruled very aggressively in favor of state's rights (especially when it comes to social issues like abortion), and, second, with this Chevron ruling, federal agencies will not be able to make decisions unless there is explicit intent in the laws that congress passes.
I'm having an extremely difficult time wrapping my head around just how epic of a change this SCOTUS has brought to the way the US population is governed, at both the state and federal level. Hard to really comprehend the gravity of the coming change, which will take decades and decades to fully understand.
> This seems like the judicial branch just voted to give itself substantially more power.
100% this but it's not new. This court claim to be "originalists" or "textualists" (even though "originalism" was invented in the 1980s) but has made a massive power grab that we will feel for decades. The "originalists" invented two new doctrines to justify this:
1. History and tradition. Basically the court decides if how something was in 1780 as a legal basis for interpreting the constitution and law. Remember at this time some peoplw were property, women couldn't vote and there was no interracial marriage. This is the "history and tradition" the court seeks to return to; and
2. The major questions doctrine ("MQD"). This has gives sweeping powers to the court to say that even when Congress defined clear language if the consequences are "large" (as the court determines it) then the court can step in and say that Congress wasn't clear enough so the court gets to essentially write legislation and overrule both the legislative and executive branches. MQD was used to justify blocking student loan relief despite Congress giving the president and the education secretary expllicit powers in this regard.
The courts just remedied a situation where the executive branch of government had arrogated to itself powers reserved to the legislature by the Constitution.
Notably another case ruled on this week did the same thing, by invalidating many agency-specific “administrative courts” and restored the rights of citizens to seek redress in actual courts.
I and many others believe that executive branch agencies (“the federal bureaucracy“) has become an out-of-control unaccountable 4th branch of government, and I for one am delighted to see them reined in.
Note that agencies will still be able to perform enforcement; they just have to stay within the bounds set by laws and they will no longer be the sole arbiters of those bounds.
Hey, that was the goal and plan of the various organizations that got these judges in place.
I mean, what checks and balances apply to focused, dedicated, funded campaigns and teams, supported by backers willing to spend multiple decades and the millions necessary - to over turn laws, win minor elections, get judges into lower courts? People spent the time to understand the system so that it could be changed in a way they think is superior.
The SC situation is the fruit of such labor.
The shortest path solution to something like this is still decades long.
No, that isn’t the case. It is saying that regulatory agencies cannot exceed their authority and act like the judicial branch. In other words, it was the executive branch that had taken more power previously.
> It is saying that regulatory agencies cannot exceed their authority and act like the judicial branch.
On any given matter there are, at first, no laws on a given subject. Before airplanes were invented there were no rules or regulations for airplanes (FAA); similarly, pre-radio, nothing about how to use EM fields (FCC).
Now, The (US) People gave The Congress authority to make laws on any subject (limited only by the Constitution).
Congress said we will make laws limited actions on Topic X, and when non-prohibited actions are done they must be done in certain ways as prescribed by regulations. Congress further said that they cannot, ahead of time, know every situation that might arise on Topic X, but further rules may be needed.
So Congress delegated further rule making, beyond the 'base' An Act to Regulate Topic X, to an agency that Congress itself created and funded via the above Act.
An agency only exists because it was created by Congress; it only runs because it is funded by Congress. Congress says, in particular Acts, that some agency should look after the details of Topic X so Congress does not have it.
Regulatory agencies have (limited) authority because it was given to them by The People (through their elected representatives).
Couldnt they just do this formally? Afaict scotus didnt rule it's unconstitutional for congress to explicitly defer, but the derefence, which originated in court precedent, isn't good.
Theres nothing stoping congress from explictly defering either via act or in the act. Right?
All this says is that if Congress defers something to a branch, and there is ambiguity, and it comes in front of a judge, the judge does NOT have to accept the branch's interpretation of the ambiguity, and can instead judge it as judges do.
Chevron said that if the branch had a reasonable interpretation (e.g, not batshit insane like saying "no arsenic in water" means "at least ten pounds per gallon of arsenic in water") then the judge should defer to it. Now the judge can but does not have to defer to it - if he pushes back, Congress can clarify the law.
This has been done many times in the IRS, where people find a "loophole", the IRS tries to patch it themselves, the courts say, yeah, nah, and then Congress amends the law to remove it.
> All this says is that if Congress defers something to a branch, and there is ambiguity, and it comes in front of a judge, the judge does NOT have to accept the branch's interpretation of the ambiguity, and can instead judge it as judges do.
So the Judicial branch has now taken on the task of determining policy, contra what was said in Chevron:
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
So if Congress makes something explicit it is a policy by The People (through their elected representatives), and if there's some ambiguity it might be done purposefully by The People's representatives (Congress), with the explicit and implicit idea to have an agency deal with it. The agency is run by The People's Executive choice (President) or administrators (Secretary, Director, etc) agreeable to The People's representatives (via confirmation hearings).
It isn't simple. The judgement states that broad implied deference to the agency of the act in question, per Chevron, is incorrect and the courts decide in the those case.
There were a ton of arguments that interpretation, in general, is an Article 3 right of the courts. Though, I'd assume if congress explicitly granted interpretation to the specific agency of the act, we'd have a separate case on whether they're allowed to do that (explicitly defer).
A textualist interpretation would be that indeed congress is now stopped from that, as anything that isn't described without doubt in an act of congress is now up to court to decide, not delegated agency.
Not "taken". It was inherently granted by Congress on the joint understanding that the intent was that agencies would engage in rule making to decide areas left undefined within the scope of the law as written.
Regulatory agencies are responsible to Congress, the Legislative Branch that has the power to adjust the law to reflect its intent. Judges are not. The understanding is that it is the agencies that are intended to have the best understanding of what they regulate, not judges.
Laws were written with this assumption in place, which the Court has just rug-pulled from the operation of the US government.
What Chevron said was that when the legislative branch gives an agency power to do X and there is some disagreement between the agency and someone else over precisely what X means and the agency's interpretation is reasonable the courts should use the agency's interpretation.
> In other words, it was the executive branch that had taken more power previously.
If I may disagree: it was the legislature that gave the executive branch power, and the judicial branch that essentially approved such an arrangement (unanimously) in the original Chevron ruling.
> If I may disagree: it was the legislature that gave the executive branch power, and the judicial branch that essentially approved such an arrangement (unanimously) in the original Chevron ruling.
But the only way to properly do that is a constitutional amendment.
To give an extreme though-experiment example: Lets say Congress 1) packed the Supreme Court with yes-men, 2) passed law giving themselves a huge pay raise and delegating all legislative powers to the President, while they go party. Didn't it just create a a king/dictator? Wouldn't that be unconstitutional?
> But the only way to properly do that is a constitutional amendment.
A constitutional amendment make it permanent, but Congress never actually lost control. They always had the power - and still do - amend, restrain, clarify their own laws.
> Didn't it just create a a king/dictator? Wouldn't that be unconstitutional?
In a scenario with a packed Supreme Court of "yes men" there are no bounds to what could happen, so why bother with the thought experiment? In your example, the constitution is already worthless.
The best argument for this is the "separation of powers" one.
In the system of Thursday, regulatory agencies can be "both judge, jury and executioner", ordering people to do whatever they want, since that's how they choose to interpret their mandate.
Power like this can and will be abused, even if it's true that the agency has the best expertise in the area.
It also makes it very dangerous for those who are abused to complain publicly, since they can arbitrarily be found in violation of the law as retribution.
This is no way to live, and the system of Monday should be better, even if it may be confused and cumbersome for a few years.
It Congress wants to change the law, they can. It's up to congress, not the administration, to make law. For decades it seems Congress has largely abdicated its legislative responsibility in exchange for the political ease of letting the administrative state, and the courts, make the law.
Just because something has "precedence" doesn't mean it's right. Banning gay marriage had precedence, but that didn't make it right. Slavery, segregation, all had ample precedence. They were still absolutely wrong then as they are now.
That said, it's also valid for Congress to decide to abdicate its powers.
We've had 40 years of Chevron deference, during which time Congress wrote laws expecting that this is how they'd be interpreted. If they didn't want this behavior, they could have passed laws about it. Or included some boilerplate language within new laws about how the agency has to defer to courts for interpretation of those regulations.
(Granted, by the same logic, they could presumably start adding some "these rules should be interpreted according to the agency's definitions" boilerplate to new laws, if they really want that.)
> it's also valid for Congress to decide to abdicate its powers.
It's not. There's long standing precedent, since well before Chevron, that Congress does not have unlimited ability to delegate its powers. E.g., in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) the Supreme Court said "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." See also J.W. Hampton v. United States, 276 U.S. 394 (1928).
And this makes sense, because Congress is not a coherent unified agent. It's a messy institutions for distilling the wishes of the people.
> E.g., in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) the Supreme Court said "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." See also J.W. Hampton v. United States, 276 U.S. 394 (1928).
If you want to talk about precedent, 1825:
> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.
Right, Congress can delegate details and implementation, but it can’t delegate basic legislation. That’s obviously a burry boundary, but it’s clear they can’t abdicate their powers in general.
> it's also valid for Congress to decide to abdicate its powers
Yeah, that's a "no." Taking away power from voters and handing it to unelected bureaucrats is specifically what the Constitution is meant to protect against.
All legislative power in the government is vested in Congress, constitutionally. That power cannot be delegated to anyone, precisely because it would result in tyranny and disenfranchisement of voters (i.e. "us").
The only way to enable this is to amend the Constitution, which, if that's what voters want, they can do.
> That on the first day of January, in the year of our Lord, one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, *the people whereof shall then be in rebellion against the United States*, shall be then, thenceforward, and forever free.
Slavery was legal in the border states until passage of the 13th Amendment.
For context. Roberts, Alito, and Thomas; who are still on the court were dissenting opinions on the gay marriage decision. Seeming to favor "precedence" when it's convenient.
The reality is that our political system cannot do what you ask of it. It is reasonable to allow executive agencies delegated authority from Congress to regulate the details of things with implied oversight of Congress
This is accelerationist or naive to think this is a good decision.
And yet, doesn't this give undue authority to the legal branch? like it just makes the legal branch the new administrative state. Reading through Chevron, it seems excessively logical to say that if a rule is vague, you defer to the people who made the rule to interpret it.
> This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
> It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court...
> Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517
U. S. 735, 740–741 (1996).
> Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.
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.
> The existing system of administrative rules absolutely sucks for stability.
This new system is even worse. At some point, the Judiciary will make a poor ruling. Perhaps this ruling is impossible to hold to, but maybe the executive branch decides to usurp the court of its own volition. Then what?
The checks and balances system of our government only works when everyone plays nice. But if push comes to shove, then the executive branch is the one that holds all the power. They don't have to obey the legislator nor the judiciary -- neither has any real capability to enforce their will.
The country has been slow rolling into single pillar government structure for decades now. IMHO, this ruling is a huge step towards solidifying the executive branch as the de facto sole branch of government. Government agencies were provided a mechanism for all three branches of government to work together, legislators provided scope and leadership, the judiciary provided checks, and the executive provided the operations.
Once the agencies are all gutted, a future administration is going get an opportunity to act on their own via executive authority and they will ignore any attempts by the court to stop them, because the court is literally powerless in all but word. And that's what opens the door to a president who begins seizing assets of political opponents.
Lots of authoritarian countries masquerade as democracies because legislators and judiciaries are inherently powerless to stop executives.
I know plenty of people will counter with the old way was supporting an authoritarian executive. But to them, I'll point out that the agency system has ~100 years of efficacy behind it.
> I'll point out that the agency system has ~100 years of efficacy behind it.
The agency system you are advocating for has only a few decades of history. Chevron was a 1984 decision, and didn’t really rise to prominence until the Obama administration.
The 1984 decision was a case contesting the agency system's authority. The result of that case confirmed the status quo, which existed long before 1984.
Up until the ACA, political platforms were accomplished by passing legislation. There was always ambiguity in that legislation to be resolved by courts, and nothing in today’s decision changes that. But prior to Obama’s administration, it was really rare the agencies would enforce policies with no basis in the law whatsoever.
That’s what Chevron deference is about. There is no law on the books that gives the FTC authorization to ban non-competes. They just argued that it kinda-sorta fell within the scope of their expertise and did it.
That is by and large how the government has been run for the last decade and a half. It is not how the government has run for most of the last 100 years as you claim. Most of that time period the agencies stuck to the letter of the law, only deviating in rare circumstances.
> There is no law on the books that gives the FTC authorization to ban non-competes.
Sure there is; it's the Federal Trade Commission Act, which says "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."
They, through the regulatory process, correctly determined that non-competes are unfair methods of competition.
> But prior to Obama’s administration, it was really rare the agencies would enforce policies with no basis in the law whatsoever.
Obama's administration changed the makeup of the court with his loss of Scalia's seat, failure to pressure RBG to resign, and Trump's subsequent picks; that's what changed. The regulatory setup long predates his presidency. Chevron fell because the court got extra conservative members, nothing more.
> Sure there is; it's the Federal Trade Commission Act, which says "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."
Not really. Do you think "Unfair" has an objective definition? Just saying something is unfair won't make it automatically or objectively unfair. Non competes are not deceptive.
It may be covered but the point it is not logically implied by the text you quoted.
Compare that with the objectivity of this (still contains a lot subjectivity):
Their point is that the "power" of the court is words and respect for its rulings. If the executive branch defies the court, the court can't actually do anything about it.
Too much importance and deferral has been granted to the courts. It was a mistake to imbue that institution as the "third branch of government." I came to view that take as propaganda when I was younger and have soured increasingly more on the SCOTUS over these last few decades. I view that court as very dangerous and in need of being smacked down a peg or two.
Congress has ultimate authority, period. So the SCOTUS running amok is a very bad look and smell.
And imagine how our allies feel. If you can’t count on the U.S. for more than about 3 years at a time, then you quickly move away from them and insure you aren’t so tied to them that a foreign election suddenly makes you vulnerable. Which then makes everyone weaker as a whole and easier to pick off.
Which is why U.S. foreign adversaries have been actively sowing chaos for a decade.
America for better or worse (mostly worse) has a two party system that in practice functions as mostly a uniparty prioritizing defense spending, entitlements, and the economy, with some lip service paid to red meat/blue meat issues to ensure power is maintained. This means you can reliably predict what American policy will be in any given moment for any given president.
Besides, EU member states have had much more iteration on their governments, policies, regulations, and parties. It's not uncommon for a European country to have 7 different parties. And unlike the US, EU's don't hold their constitutions in a such unchanging high regard. Ours is purposefully difficult to change. France, for example, on the other hand, has changed its constitution twenty-five times since circa 1958.
edit: I took out He-Who-Must-Not-Be-Named because it seems even here on the board of Very Smart People ™ we can't help ourselves when we see that name and ignore the rest of the point someone tries to make.
You say this as though he isn't favored to win the next election and take over the presidency and all its policies in about six months.
Edit in response to the edit: I latched onto this because it's entirely relevant to the rest of your point. Trump is the Republican party today, and his foreign policy dictates the acceptable stances for the majority of Republicans in Congress. His foreign policy is absolutely terrifying to our allies.
I didn't latch on to Trump because he's a big name, I latched on to Trump because you deliberately glossed over him as though he weren't an enormous glaring example of how quickly our foreign policy can (and is likely to!) pivot.
I never understand this mentality. They continue to support expanding the power of the executive until it consumes all functions of government, while simultaneously declaring that Trump (and every Republican candidate in every presidential election) is basically Hitler. As if it is inconceivable that the technocrats they relate to will never lose control of government (and legislative agencies.) This, when a wrestling valet Berlusconi-level carnival barker was just elected president eight years ago against the (appointed through a goofy primary) übertechnocrat H. Clinton. That was their best and brightest, and the public was disgusted.
My theory is that liberals were made mentally dull by the Warren court, that it created this unacknowledged model of government within their minds where all actual controversies are low level, and will eventually work their way up to the Supreme Court, who will simply dictate the consensus liberal opinion to be the law.
It's a world where Congress has no other function but to create regulatory agencies to which they appoint their campaign staff, thinktank creatures, friendly professors, lobbyists, and each other's friends and family. To fill in the gaps, the country is otherwise ruled through executive orders, and all resulting injustices from this system are to be straightened out by the Supreme Court. That world is very much gone, and nobody has adjusted because all of their theories on liberal governance come from a period during which this was close enough to true (although gradually less and less after Warren.) It is not now true. We (and liberals) can stop worshiping the members of the Supreme Court now, and simply treat them as smart, connected people writing opinions that we may or may not agree with, instead of some holy chamber of wizened elders.
It's profoundly anti-democratic. It's an exact counterpart to the theocrats on the conservative side, but not grounded in anything but current upper middle-class trends and a belief in Whig history to replace the belief in gods.
If we can't fix Congress, and get them to actually govern, there's no government worth saving. I'm not going to fight for the right of the president to unilaterally declare war, rule by executive order and Supreme Court dictates, or the actual functioning of the country to be delegated to unaccountable regulatory agencies. Doesn't spark joy.
edit: I think the existence of the Senate probably adds to the level of liberal cynicism about democracy. It should really be abolished or directly elected in a way unconnected with the states. We already have a geographically based body in the House. The Senate is clearly a distortion of democracy, like a sensory homunculus for representative government (https://en.wikipedia.org/wiki/Cortical_homunculus#Representa...)
> It's a world where Congress has no other function but to create regulatory agencies to which they appoint their campaign staff, thinktank creatures, friendly professors, lobbyists, and each other's friends and family.
And they call anything that takes power away from this unelected shadow government "anti-democratic."
2016 was absolutely fascinating because, while it’s possible it was a double fakeout, it really looked like the first shoot in presidential politics in my lifetime. Insofar as there is a script, it sure does look like The Nameless One went off it. It was totally obvious the intent was for a Bush vs Clinton rematch.
Foreign policy is mostly up to the executive branch and is far removed from the decision-making process regarding whether or not the EPA can regulate a new type of deadly plastic.
This is a very uncharitable view of how foreign policy works. It is absolutely in our best interest to not only maintain strong diplomatic ties with peoples and countries who share our values, but also cooperate in defense efforts and ensuring safety and security from military actions that would undo things we benefit from in the long term.
Sadly America's politicians stopped explaining this and took the American public's support for granted expected us to see things the way the Greatest Generation did. Our allies took our support for granted and spent their money elsewhere, then started making fun of us for subsidizing their affordable healthcare.
Our political class getting lazy and stopping doing the hard half of their jobs (effectively communicating and building national consensus) and instead adopting Jon Stewart levels of discourse and you get where we are today.
That is exactly what the US' adversaries would like you to believe is the case. By all means, carry water for the despots of the world as you turn inwards.
I don't think our allies felt quite so flung about until Trump came along. Sure, administrations might engage a little differently from one another, but fundamentally they could count on the US for a very long time. Presidents did not, before Trump, throw NATO under the bus, for example.
Reminding NATO countries to adhere to the 2% of GDP spending stipulated in the terms of the alliance is "throwing NATO under the bus"? Or did he do something else I'm unaware of?
Did you forget the first impeachment for withholding critical aid from a buffer country between NATO and USSR-hopeful in exchange for them investigating his political rival?
Ukraine has nothing to do with NATO. If Poland were attacked, then there’d be something to discuss. As an American taxpayer, Ukraine is none of my business. Was Ukraine sending troops to help find Bin Laden when the U.S. was attacked? What strategic value does Ukraine have for the U.S.? Very little. It wasn’t like they were letting us put airbases or missile defense systems in their country. If Russia attacked Finland, Ukraine wouldn’t have done anything.
Its strategic value is exactly as described: a buffer state. It gives us months, if not years, of warning and can potentially totally rebuff an aggressive Russian state.
To be confused about this at this point reveals either profound ignorance or extreme motivated reasoning.
Trump was found not guilty in the impeachment trial. Effectively he was “indicted,” but not convicted. So according to the Constitution, he did not do what he was accused of.
I think the point is that, in the eyes of the law, "not guilty" is all that matters. Whether he's "innocent" in some moral or karmic sense is up to God at this point.
Uhhh I’m not talking about morals or karma whatsoever. I’m talking about factually, what actually occurred. One can look at the timeline of events themselves: $400MM in aid frozen a few days before a phone call with Zelensky in which he pressured an investigation into Biden. The records exist, you can look at them yourself.
You’re free to take the position that the timeline, testimony, and transcripts from the call are overruled by your belief in Trump’s and the Senate GOP’s integrity, but that’s not the only reasonable interpretation of events.
One can absolutely draw their own conclusions separately from what the obvious sycophants in the Senate ruled. A finding of acquittal does not mean that the alleged acts didn’t happen, in any court case, never mind one as politically loaded as this one.
There are things you are not seemingly aware of, to your point.
But while I do agree NATO allies should spend 2% or more on the militaries in a good faith effort, the spending value itself is kind of a dumb metric if for nothing other than they could just spend money and have poorly trained militaries anyway. It’s a rallying point to be angry about by people who didn’t know what NATO even was before Trump started complaining about it.
Going back to the awareness issue, the United States and allies across the world have been working to stop Russian aggression in Ukraine, and potentially elsewhere like the Baltic states or other formerly occupied Soviet Union states. Many of those in leadership in Europe and elsewhere are concerned about Trump because they do not, for good reason, trust him to act faithfully on the commitments that the United States has made in Europe.
Vladimir Putin believes that the United States and its influence should be degraded in Europe and that European states should instead be under the influence of Russia. This is a net negative for the United States obviously, and the concern here is that Donald Trump seems to either agree or find himself apathetic toward this because he doesn’t seem to understand that he’s being played for a fool to the detriment of the United States and European partners.
To try and paint a more clear picture, if the United States were to fail to honor its security commitments to Europe, it calls into question the ability of the United States to honor any strategic commitment. This pulls not just European countries closer to Russian influence, but causes the United States a massive headache in the Pacific as South Korea, Japan, and Taiwan (never mind the Philippines or others in South East Asia) stand to be sucked into the sphere of Chinese influence which means that the United States loses military, diplomatic, and economic capabilities and leverage.
You might say “so what?” and to that I’d say you’ll find our country worse off economically, higher prices for many goods, and whatever meager international influence exists today to cooperate on global or regional issues will be significantly degraded.
Bush going unilaterrally to war with Iraq (albeit with his lapdog Blair) really didn't do US foreign relations any favors either. It's not just Trump, it's a long-running theme. Trump just accelerated the trend.
I used to hold this. I can't put a finger on what exactly changed. I strongly believe Congress is productive enough, and the ambiguity around this sort of thing is good, because it allows flexibility in the face of changing circumstances.
With such a vibrant public democracy as America, things that drag out, like allowing non-competes for fast food workers, are best served with public participation, a long process, and sunlight.
It's not as tightly coupled to a presidential administration as you may think, that's where "Deep State" grumbling comes in: if it's imposed by presidential fiat, its in violation of a 1000 mundane things that courts have historically consistently enforced: a long, public, process with a thorough cost/benefit analysis that indicates a net benefit. So, the "Deep State" (administrative processes that are required to occur for a rule change at an administrative agency, to whom authority was delegated to by the legislature) prevents a unilateral presidency.
Parsing through the FTC press release on non-competes provides some indica of the sunlight/processes involved. [1]
This will not force Congress to suddenly become a responsible and capable legislative body. It will result in there being less government. Fewer rules to protect consumers, fewer rules to keep our air, water, and ecosystem healthy, fewer rules to prevent the powerful few from exploiting the many.
Make no mistake about it, this is about giving more power to the powerful, and it's working. This is the swan song of America if we don't wake up.
>If this forces Congress to get their shit together and pass lasting laws
It won't. People will just suffer while federal workers sit around twiddling their thumbs, because they no longer have the power to figure out how to carry out their missions. And then this will be used to label their jobs as "waste" in order to justify shutting down their agencies. Tada, the real aim of vaporizing regulators and government services achieved.
If you found our perennial government shutdown circus entertaining, you're in for a treat.
This won’t change Congress, which is more partisan than ever. It just means what we have in code now is what we are stuck with for a really really long time.
That's why I included the "or": the other option is that the states will take up the slack (and they will take it up, we're already seeing that after Dobbs).
We're at the scale now where majority rule at the federal level will usually leave 170 million people unhappy. If we can't get anything done at the federal level that might be a sign that we've hit the maximum size+diversity threshold for a functioning democracy and it's time to resolve more of our issues at a smaller, more local level.
You have an incorrect understanding here. What was occurring now was not "government by administrative rule" as you put it. It was government by rules passed by Congress. Congress explicitly defers on specifics of some laws to agencies because it is not qualified to provide specifics. Agencies, staffed with experts, are capable of making fine-grained decisions on how to implement laws that Congress passes.
This SCOUTS ruling means there will be *significantly more* ambiguity and instability in the federal government. *More* things will be up for destabilization by Republican activist judges. The outcome will be a government that works less efficiently and effectively.
This is the Republican play book: purposely make the government worse, distract with absurd claims, then come election time lie and say that the Democrats want to make the Republican's version of bad government even more expansive. Every four to eight years, the Democrats clean up the Republican's mess. Government gets better. Then Republicans lie again and the cycle repeats.
> This is the Republican play book: purposely make the government worse, distract with absurd claims, then come election time lie and say that the Democrats want to make the Republican's version of bad government even more expansive. Every four to eight years, the Democrats clean up the Republican's mess. Government gets better. Then Republicans lie again and the cycle repeats.
You may already understand this, but just to make it explicit: the Democrats are not the good guys in this process. They benefit just as much as Republicans from good government being perpetually on the brink. They win the presidency because we're terrified of what Republicans will do if they don't. The system is currently structured to reward both sides for brinkmanship and that's why it sucks.
We need a system that reduces the amount of change riding on any single election and neither party wants a change to such a system. If SCOTUS is as much an extension of the Republican party as people here assume then I think we'll find in 30 years that they badly shot themselves in the foot.
There has always been judicial review in cases where some affected party felt that administrators of an agency went beyond the mandate. This has been the norm for many decades now. The Supreme court legalized foreign money to use in election campaigns with Citizens United. It has gutted voting rights by allowing thousands of polling stations to be closed. You can easily guess where those polling closures mostly have occurred. A few days ago it effectively legalized bribing government officials. It has taken away rights of women, convicts, and now the ability of government agencies to carry out their mandates.
There are major power imbalances in the country and it is not sustainable. The path we are on leads to a breakup of the country or a rewriting of the Constitution. The status quo is not sustainable.
It won't force Congress to do shit. The same flip flop will still happen, but instead of 4-year executive terms, it will be driven by lifetime court appointments. The court is going to remain Republican for the foreseeable future, unlike the presidency.
In which case the states will step in. We're already seeing this happen post-Dobbs, with blue states falling over themselves to create safe havens. If Congress can't get anything done and the courts won't let the executive branch do anything then that trend will continue with workers' rights and everything else.
Maybe our problem is that the country has just gotten too big to run effectively as a single 350-million person democracy, and it's time for the state governments to step up and stand up for their people.
Either way—federally or at the state level—we need written laws drafted by elected representatives in a body that has more inertia than the single position of chief executive.
> Maybe our problem is that the country has just gotten too big to run effectively as a single 350-million person democracy, and it's time for the state governments to step up and stand up for their people.
Or, perhaps, we just need to alter some aspects of that government to run better. For example: changing the size of the House of Representatives to make it more representative. It wasn't supposed to be stuck at 435.
Switching away from first past the post voting would also help enable more diverse voices within the government.
> Switching away from first past the post voting would also help enable more diverse voices within the government.
You have my full agreement on that! Unfortunately that's not going to happen at the national level any time soon, both parties benefit from first-past-the-post too much. We'll see better luck experimenting with it at the local and state level.
Okay, so a blue state steps in to make themselves a safe haven. Conservative courts sue and take cases up to the supreme court to force their will on them. Said blue state then says 'I believe the supreme court ruling is invalid and will not adhere by it'. What exactly do you think will happen?
And for reference, there has already been trends of this occurring. The Texas bounty hunter law for women who have abortions is an example, where they have tried to sue other states for records pertaining to abortions (See: Texas vs Seattle Children's Hospital).
I used to feel this way, and I can't quite identify the totality of what shifted my position, but now I parse this as "we just need to motivate congress" and it feels wrong.
The American system has always been full-throated adversarial -- and extremely successful. The historical system of legislature could delegate, and if the delegation went bad, the judiciary could intervene, rather than the legislature has to intervene in every bit of administrative minutae.
Analogy would roughly be...idk, the CEO has HR handle pencil procurement. HR, over the years, used this to interpret they could swap in mechanical pencils, erasable pens. But the new CFO tells the board this has to stop, the CEO is responsible for signing off on expenses. And then the employees say this is a good thing, that'll get the CEO more involved. But the CEO is already involved, just busy with other things.
The problem aren’t interpretative courts, its unclear laws.
The pencil example is all fun and games, but swap « buying mechanical pencils » with « sending people to prison », and then it makes more sense why some people prefer the judiciary branch to constrain the power of HR when there’s ambiguity.
It's pretty much impossible to write a statute to account for every single possible situation and interpretation. In one county where I live we recently had a huge kerfluffle over the county code section about a ferry and ferry fares and what kinds of things the farebox can be spent on. At one point there were three different rewrites of the same statute, all purported to accomplish the same goal, and all markedly different depending on which motivated entity wrote the proposal. At any rate someone still would have needed to interpret the statute.
The CEO example is intended to demonstrate why "ah good, this'll make the legislature more active" may be too simple.
I'd also prefer a more practical example to argue with.
IMHO my shift on this is due to the practical examples seen over the years, legislature delegating to an agency they create, with judicial review, ends up being a good thing.
I'm honestly unaware of any unjust rule-making that ended up unfairly trampling someone, much less whip-lash back and forth.
Indeed. What's happened fairly recently is that the Heritage Foundation and the Federalist Society have realized this and concluded that they can define the future of the country by strengthening the judiciary rather than trying [the much harder task] of making congress functional. It's working great, and even though this started further back it only became blatantly obvious to outsiders what was happening with the Trump presidency.
And more importantly getting the CEO involved in pencil procurement prevents the CEO from handling business development tasks that would bring in tons of mechanical pencil money. So it's penny wise but pound foolish.
What about this ruling stops Congress from explicitly granting interpretive power on some aspects of a law? The default now is implicit interpretive power, this ruling flips it.
The Constitution explicitly delegates interpretation to the Courts. Just as execution is delegated explicitly to the Executive, and Legislation is delegated explicitly to the Legislative.
Anything passed by the legislative that tries to end run that delegation is simply not even a law. The Constitution is the Supreme Law of the Land. What is explicit within it overrides everything else.
Yesterday would you have said "Whats the problem? If congress disagrees with what the executive did to fill in the blanks in their laws, they just need to pass new laws."?
I have only grade school understanding of the branches but I was taught the executive branch is supposed to enforce what congress decides with laws which this reversal seems to support.
Congress is like the product manager and creates something like the URS (user requirements specification).
The executive branches like the developer team that has to Turn those high-level requirements into detailed implementation plans.
The judiciary is typically the quality assurance and auditing team. They make sure that the executive branch hasn’t gone way past the initial requirements and they also check to make sure the initial requirements make sense and don’t cause other problems.
I think you are being sarcastic, but actually a radically reduced executive branch would be a huge step in the right direction for the actual rights of citizens to determine their own laws.
You meant to say "extremely wealthy citizens." The power vacuum that comes with less government is always filled-in by people with the most resources. And those sorts of people only see the non-wealthy as objects to be exploited for them to acquire even more wealth.
I refuse to be that cynical. All people can vote. Chevron was enacted in 1984. So the most progressive periods in US History occurred before it was enacted, when (according to you) a power vacuum was filled in by the people with the most resources.
Why didn't those super powerful vacuum-fillers carry the day in the Civil Rights Movement, or when marginal income tax rates were 90+%, or when the EPA was created? Because they don't have the power that everyone thinks they do (maybe even they think they have, themselves).
No, I do not think that. I'll copy/paste this from another reply I made to a very similar comment:
I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it.
The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.
This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.
> No, I do not think that. I'll copy/paste this from another reply I made to a very similar comment:
> I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it.
But it isn't, the world changes, writing laws that anticipate these changes is equivalent to predicting the future. Take for example laws to regulate the telephone networks, those networks over time changed from carrying voice traffic to including data to carrying data exclusively (and voice just being data). So even if we believe the networks are effectively the same, Congress now has to waste their time to write new laws to keep up with those technological advances (and telecom is by far from the only area, what about new medical therapies that we hadn't imagined previously. Should Congress write new laws for these? ) essentially this is the way to paralyze it.
> The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.
I don't see what is shocking about it. Are you shocked that you have to pay for your rubbish collection (which is a requirement for living in many places)?
> This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.
> Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.
Isn't that just the default assumption of all regulatory law? e.g. when the FDA adds an ingredient labeling requirement, there's no expectation that the FDA has to pay for the costs of adding the labels. When the EPA says "hey you can't dump your waste in this river" they don't have to pay the cost of getting rid of it in a compliant way. This doesn't strike me as an abuse at all.
I agree, but what's the solution? Aside from a complete overhaul of our system of government, which realistically would require armed revolution or some sort of bizarrely-peaceful military-supported coup d'etat.
> If this forces Congress to get their shit together and pass lasting laws
It won't. One of our political parties is hell bent on removing rights, reducing protections on workers, the environment, everything. They want a significantly smaller federal government. They wield enough power that there is no way that, for example, if Congress had to do all of the EPA's rulemaking jobs, anything would actually get passed.
States have some ability to take this on (for now, at least). California's vehicle emission standards, which end up being the de-facto national standards, are one example. But I could easily see conservative SCOTUS not letting this stand, and coming up with bullshit reasons why those rules are unenforceable.
And this is a part of the problem. The conservatives cry "states' rights!" at every turn, but they are still quick to strike down (at a federal level) things that progressive states do that they don't like. The other part of the problem is that there are quite a few policy things that you can't leave to a patchwork of states to decide for themselves. You need national unity for it to matter.
> It's just going to be very uncomfortable for the next few decades as we sort it all out.
Awesome, by the time that happens, I'll be an old man unlikely to see any of the benefits of it eventually becoming sorted out.
More likely, I expect Trump to win this fall, and he'll dismantle and destroy the executive branch, and further degrade any trust in institutions that we have left.
...
One thing I do think would help would be to fix representation in the House. House membership was regularly expanded as the nation's population grew, but has been left static for over a century now. One of the more reasonable methods I've seen for determining the total number of seats in Congress would have us at around 700 now[0] (vs. the 435 we actually have).
There are a lot of options here, and it can be instructive to look at other countries for comparison. The UK has a fifth of the US's population, but their House of Commons has 650 members. But on the other end of the spectrum, India, with a population 4x that of the US, has a lower Parliament chamber with a maximum of only 552, though that's a constitutional requirement and perhaps harder to change. Anyhow, if we were more like the UK, the US House would have around 3,250 members (a quite nice ~100k constituents per representative). That's probably a bit too unwieldy? But if we were more like India, the US house would shrink to 135, which is almost certainly far too few (mind-boggling ~2.5M constituents per representative).
Not only would a larger House mean better representation for constituents (both being more proportional, and having each representative represent fewer people), but it would mean larger committees, and more people to tackle various rulemaking jobs that are currently handled by executive agencies. I do expect that a larger, more proportional House would end up being more left-leaning, so I'm obviously biased at least somewhat in my desire for this to happen. (As an aside, would fewer constituents per Congressional district make gerrymandering more difficult? Intuitively I think so, though I have no real basis for believing that.)
>Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
Why not? Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is. "Chevron defense" has been a way for Congress to shirk its duty for decades. If the law is ambiguous, courts must resolve the ambiguity. That is exactly what courts are for. To say that it would be better for an opaque, appeal-proof bureaucracy to have the final say was a ludicrous step on the path to our ever-growing executive tumor.
The tone of your quotes from Kagan give the impression that federal agencies are "responsible" and able to use "discretion". But agencies are political animals, subject to the whims of the current president, who can potentially change every four years. Courts are much slower to change, and much less vulnerable to the political whims of the current administration.
So many people are polarized and focused on winning presidential elections so they have their hands on the levers, that they never question whether the levers should be there in the first place. Perhaps politics would not be so polarized if the President did not have so much power, and the stakes were not so high.
> Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is.
No, it's not. That's like saying it's the CEO's job to write every design document in a company.
It not only doesn't make sense -- it's not even possible from a perspective of information throughput.
It sounds like you're saying that Congress should approve drugs rather than the FDA. Absolutely not. Congress should write the regulations that govern how the FDA operates, and then the FDA should operate.
And let's remember -- if Congress doesn't like what a regulatory agency is doing, it can pass legislation to change that. If it doesn't, we can assume it approves. Therefore the courts have no business stepping in -- except obviously when there is genuine conflict between laws or with the constitution. But that's not what you're talking about.
I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it.
The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.
This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.
Ok so now let's challenge what trained means, and what professional means, and what observer means, and what regulated means, and what fishing means, and what vessels mean and so on and so forth.
I would be surprised if courts had not already heard and decided cases on the meaning of all those terms. But if they haven’t, then sure I guess they should. But precedent means they would only have to be decided once, not repeatedly litigated over and over as you seem to suggest.
> That is a straw man. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it.
But laws can't do that in infinite detail. It's literally impossible. So it's not a straw man at all -- that was my point.
At some point, regulatory agencies, like anything in the executive branch, have to decide for themselves how to get their job done. Because they have to do that a million times every day.
If Congress didn't specify who will pay for the observers, it makes much more sense to leave it up to the agency than to the courts, except in cases of obvious abuse, corruption, etc. -- which this does not appear to be.
I agree it sucks that the fishing vessels have to pay for the observers, but it seems obvious to me that the body to fix that is Congress. If the fishing industry can't get the agency to change it, then they should be contacting their Congressional representatives to change it. And Congress either will or won't, but that's literally who is in charge of this.
It seems like a strange issue for the courts to get involved with, because there's no conflict with other laws or with the constitution.
This does not change that in the least. What changes is that if e.g. the FDA is acting in a way that does not seem to fall within their legal mandate, then people have more freedom to take legal action to ensure they fall back to within that mandate. And I think this is extremely important. The United States it not a dictatorship. People should have the right to challenge organizations which seem to be going beyond (or even against) their legal mandate.
If Congress is unhappy with how this plays out, they're completely free to clarify any sections that get challenged.
Yes. In an analogy to a corporation, the Congress is the Board, and the President is CEO. The board approves the corporate bylaws, the Congress approves the laws.
>But agencies are political animals, subject to the whims of the current president, who can potentially change every four years. Courts are much slower to change, and much less vulnerable to the political whims of the current administration.
Kagan agrees that executive agents are more political and shorter-lived than judges. Which is part of why she dissented. A federal judge has no constituents, no chance for replacement if the will of the people is ignored. A bureaucrat is appointed by an elected President, so there's at least an indirect avenue for accountability by the people.
>If the law is ambiguous, courts must resolve the ambiguity.
If it's a matter of law, the courts did resolve disputes in step one of the Chevron deference system. Federal Judges are considered experts in law and Congressional actions. If the dispute falls outside of the legal framework (e.g., Kagan's examples of which new polymers count as proteins, or reasonable ways to return the sound level in a national Park to a near-natural state), then the judge went to step two of Chevron deference: defer to the subject-matter experts in the agency. It is ridiculous to expect a judge to get a crash course in hundreds of complex fields that could actually prepare him or her for an informed ruling. Deferring to the people who've studied and practiced the topics seems like the better choice.
> This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
I really hope she meant to convey a different point here, because it reads as if congress doesn't care and wants unelected bureaucrats figuring out what laws mean because they themselves know they suck at writing those laws. If that is the case, then why even have congress?
That isn't the point. My government is supposed to have it's rules made by one body, congress. It's very strange to me that there's a large contingent of people - even some who pretend to be lawyers - who think that it's fine that some random guy that gets hired through a political appointment by the executive is the one actually making the rules.
You've misunderstood what she's saying. For many issues it is not possible for Congress to write laws that are simultaneously completely unambiguous and actually deal with whatever issue they are trying to deal with. Actually applying the law almost always involves numerous decisions to fill in some of the gaps.
"Perfectly complete" is a pretty high bar. For example, consider a law directing the EPA to fine violators who dump "fatal substances". How complete is complete enough?
That leaves us with some options, such as these ones which I'm ordering from "most reasonable" to "most insane":
(1) In lawsuits, courts should generally assume that the lawmakers have given the EPA permission to create a formal list and judgement criteria for what counts.
(2) In lawsuits, courts should assume the list is totally empty unless a federal lawsuit has happened where both sides have called in "chemical experts" to testify and then a federal judge decides which chemicals are deadly and which are not.
(3) The law is totally meaningless until congress amends it with another bill that inserts a full list of every possible chemical composition and configuration required concentration-level, and anything not explicitly included on the list is exempt.
I think there is an option (4) which is probably the one the court would prefer.
(4) In lawsuits, the regulator should have to prove that the substance in question is fatal. The EPA will have published a list ahead of time and and if challenged it will be up to a court whether the EPA has correctly determined the lethality of the substance.
The most reasonable option would be for congress to explicitly put in the bill that the EPA (or some other group of experts) makes the list. I’m no legal expert but in your example it sounds like that’s all that’s needed.
It's in the law already; for instance, for the Clean Air Act, see USC 42 section 7422 where the EPA is authorized to reclassify previously unregulated substances. That the court chose to ignore the plain reading and intent of Congress is baffling, unless one explains it as gross corruption.
Did you list the wrong thing, because this seems pretty limited?
(a) Radioactive pollutants, cadmium, arsenic, and polycyclic organic matter
Not later than one year after August 7, 1977 (two years for radioactive pollutants) and after notice and opportunity for public hearing, the Administrator shall review all available relevant information and determine whether or not emissions of radioactive pollutants (including source material, special nuclear material, and byproduct material), cadmium, arsenic and polycyclic organic matter into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health. If the Administrator makes an affirmative determination with respect to any such substance, he shall simultaneously with such determination include such substance in the list published under section 7408(a)(1) or 7412(b)(1)(A) 1 of this title (in the case of a substance which, in the judgment of the Administrator, causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness), or shall include each category of stationary sources emitting such substance in significant amounts in the list published under section 7411(b)(1)(A) of this title, or take any combination of such actions.
(b) Revision authority
Nothing in subsection (a) shall be construed to affect the authority of the Administrator to revise any list referred to in subsection (a) with respect to any substance (whether or not enumerated in subsection (a)).
Regulations that automatically expire after some time period but require Congress to given an up/down vote would give the regulations greater legitimacy in a democratic system.
Congress doesn't need the expertise to write the regulations. The elected Congress could just vote to pass the regulations as laws. Congress just doesn't want to be on the hook for the regulations, which is part of the reason why they hand off law-making to the agencies in the first place.
Theoretically, this approach would give people a greater voice in the rules that govern them. Sadly, in practice, we can't seen to rollback the proliferation of criminal laws that embolden prosecutors and lead to an unfathomable number of people in jail that have not been convicted by juries.
Congress already has that power now though..? The congressional review act lets congress review and vote on new regulations issued by government agencies. Lots of people in this thread seem to be missing the fact that congress already approves of these agency rules. If they didn't they would have blocked them under the CRA.
Congress failing to block a rule by passing a CRA resolution is very different from Congress approving of the rule. For example, if the majority in the House supports a rule but the majority in the Senate does not (or vice versa), neither an explicit approval action nor an CRA blocking resolution can be passed.
Not really. If congress writes the laws intending the responsible agency to resolve ambiguities (which they do in just about every case) and doesn't object via CRA I don't see how that isn't an explicit approval.
It’s incorrect to assume that Congress knows and intends every ambiguity they create and that they can foresee and approve of all the interpretations an agency might reasonably come up with for each such ambiguity.
Even in those cases where they recognize an ambiguity they create and where the agency’s interpretation is within a scope that Congress approvingly foresaw, that’s at most an implicit pre-approval of the agency’s regulation, not an explicit approval of the regulation in the sense that defeating a CRA resolution would be.
Far more importantly, most CRA resolutions attempted to date have not occurred in the same Congress as the one that passed the authorizing legislation for the regulation. There is no reason at all to assume that the Congress attempting the CRA resolution holds the same view on the relevant agency interpretation as the one that passed the authorizing legislation, whether that view is approval or disapproval.
I don't see how the threat of regulatory capture would argue against letting experts decide what actions need to be taken to protect the publics health and the environment
You missed the point of the paragraph. Congress routinely writes laws directing, for example, the EPA to determine if and when an emissions-reducing technology is economically feasible. The majority opinion is saying that courts need not defer to such findings and they will decide for themselves.
Justice Kagan for the longest time has been the liberal that tried to reconcile with the rest of the court.
But she delivered her dissent orally and framed it broadly, signaling that there is no possibility of reconciliation.
That unfortunately will lead to less balanced decisions.
As for Chevron, this decision vastly expands the scope of political franchises by putting a brief review by a single (lifetime-appointed) federal judge on par with the entire administrative law process with hundreds of stakeholders and experts. It's not a win for rationality or settled expectations; it injects risk into every regulated field.
I was thinking yesterday what a mockery of the concept of justiceability some of their past decisions have made. Like the court is forced into a Sophie’s choice on whether to agree to let a Captain Planet villain go free or let the lawyers drain the fund. And the court could also just flatly do a “in a one-time non-precedent-setting ruling, those assets are obviously still under your control and companies cannot indemnify individuals against actual knowing wrongdoing”… but that would never be used in that way for the benefit of mere plebs.
But it does throw the whole idea of injusticeable claims right out the window. Bush had no claim at all, he literally still got thrown the election in a special one-time-ruling.
What they did was a valid exercise of their power, just an extremely distasteful one. Right? As such, they’re literally, by the text of the constitution, an unjusticeable claim. The concept is facially incoherent, the court can justice anything it wants.
The things they choose not to address, literally are because they’re things they don’t care about using their assumed powers to address. They literally invented the whole concept of a “one-off calvinball ruling” and formalized the concept already.
It would be the funniest "textualist" outcome, certainly.
Every time I hear some disparaging comment about "the penumbra of the constitution" from the conservative justices, I can't help but roll my eyes because of that.
The Roberts Court just decided to increase Congress' workload 100000x. This is one of those rulings that is going to get overturned in a few decades when it turns out to be completely unworkable to have Congress be subject-matter experts in thousands of areas.
In 10 years when people wonder why their rivers are glowing green and everything in the ground is dying and there's a weird smell in the air, and corporations are just allowed to decide you pay them for no services and there's nothing you can do about it...this decision is going to be the reason.
It looks like Thomas' and Alito's benefactors finally got what they spent most of the last decade trying to buy.
On the flip side-- congress often will pass regulation with the very intent to allow ambiguity so that the regulatory agency will have extreme latitude often against the will of the people.
Or a regulatory agency will grossly stretch their mandate to overstep what they are effectively allowed to regulate and interpret.
Since there effectively minimal judicial checks and balances against that behavior that's also not desirable either. Just look at the farcical interpretations from the ATF in recent years that have sent innocent folks to prison for having a completely non-functional design of a gun part on a business card to prison. Or classifying a shoe string as a machine gun. These folks have had little to no recourse in court due to the ATF's broad unchecked discretion.
To anyone wondering, to save you some googling: yes, both the mentioned instances aren’t obviously-unreasonable in context. One was someone formally asking the ATF whether it’d be illegal if they made a machine gun with a shoe string, and would that shoe string then be an illegal machine gun part and the ATF going “yeah, duh” and the other was someone seeing exactly how close they could get to selling machine gun conversion parts without crossing the line, and the karmic principle of FAFO kicked in.
I was curious about cases where this played a role. Looks like the namesake case was about EPA Clean Air Act enforcement in the 80s (the outcome being regulation), and then an FCC ruling to classify internet providers as “information services” rather than “telecommunication services” and avoid stricter regulation (the outcome being deregulation).
Overall, it seems the Chevron deference was a cornerstone of administrative law, affecting how agencies operate, how laws are enforced, and how the balance of power between branches of government was maintained. It’s not clear that this always led to more or less regulation. I’m curious what the impact of deference was beyond cases that made it to court?
It seems like the biggest outcome is that as we all know Congress can't pass laws, so the judicial system just go a huge amount of power to interpret ambiguous laws (I'm not sure how controversial this but language is inherently ambiguous...).
I expect a lot of court shopping to judges in Texas to get favorable result to abscond with any regulatory oversight
Until today, most national policy was set by "experts," i.e., people whose careers, professional reputation, and emotional bonds are bound up in the industry. That is to say, the rich and connected in any given area of life. The SEC is staffed with "experts" in exchanging securities, i.e., successful traders, who are then expected to govern traders.
The inexorable result of this status quo is corruption and oligarchy.
Ironic that you link to an article about the Gilens/Page study, which showed that it was in large part Congress that was unresponsive to popular opinion, not federal agencies like the SEC.
I'm impressed that they can so easily dispose of 40 years of law making by Congress that assumed that agencies would interpret the statutes and make rules for regulating their area of authority.
Now Congress is going to have to specify every possible consequence of laws in the statutes, otherwise a judge will decide.
So agencies will not have any power to actually regulate.
Awesome logic work, but terrible legal thinking without considering the side effects of the decision.
Congress skirted their duties for 40 years. This legislative / executive codependency then created a tightly connected and interdependent governance system, outside the purview of the judicial 'checks and balances.' This is why things like warrantless mass tapping and the Patriot Act became 'good law.'
We are unwinding decades of bad governance. This is a joyous occasion, along with the ACJ decision from last session.
Before anyone says there were still checks and balances - if you feel the need to, you have no idea what Cheveron meant
Delegation dates back to (at least) the early 1900s:
> Since 1935, the Court has not struck down a delegation to an administrative agency.15 Rather, the Court has approved, without deviation, Congress's ability to delegate power under broad standards.16 The Court has upheld, for example, delegations to administrative agencies to determine excessive profits during wartime,17 to determine unfair and inequitable distribution of voting power among securities holders,18 to fix fair and equitable commodities prices,19 to determine just and reasonable rates,20 and to regulate broadcast licensing as the public interest, convenience, or necessity require.21
> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.
Delegation is a key component of governance and predates the US with Ministers of the Crown, and once the the US was formed with Secretaries/Directors/etc, all of latter which are approved by the US Legislative branch through (e.g.) Senate-approved appointments.
This is not about delegation. This is about interpretation of the limits of delegated power. Under Chevron the executive agencies decided that without check. Before Chevron and after Raimondo it's the courts that decide. The 40 years of Chevron were an aberration.
> Under Chevron the executive agencies decided that without check.
That isn't even close to being the truth. Under Chevron congress was always free to pass statutes as detailed as they want to avoid the kind of ambiguities that would even apply to Chevron in the first place, and judges have always had the oversight to ensure that an agency's interpretation was a "permissible construction of the statute".
Those are two literal checks. I have no idea where you ever got the idea that executive agencies were "without check" but that is just plainly wrong.
"First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."
The Chevron ruling was codifying what was already happening for decades:
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
There is plenty of oversight in interpretation and Congress does not need to micromanage interpretation or implementation. Delegation as a principle of government pre-dates the formation of the US with Ministers of the Crown, and was continued post-formation as that's why there are Secretarys of Department X/Y/Z or Directors of Agency A/B/C.
The People (through their representative in Congress) are fine with agencies doing the interpretation. Those agencies are headed by an Executive of The People (President), and are run by administrator who are People-approved (through Congressional hearings and Senate approvals). The Legislative branch can dial up and dial down the flexibility of interpretation any time they want through Acts that change how the department/agency involved works, or through altering leadership (Secretarys, Directors) of the agencies.
Chevron codified what had been happening since the New Deal. Raimondo codifies what has been happening since Chevron! Pretty ironic. Each case was a bookend to the preceding trend.
It wasn't really "without check" though, was it? Courts could still rule that an agency exceeded its authority, it's just that Chevron meant the courts had to give deference to the agency's interpretation if Congress left the law ambiguous – and if the agency's interpretation was "reasonable."
So for example, if a law grants an agency power to regulate pollution emitted into the air, the agency already couldn't simply decide on its own that it was also able to regulate toxins dumped into rivers. But it could decide, if the law was vague on this point, whether "emitted into the air" included car exhaust vs. only stationary factories, for example.
The principle was that if Congress left a definition or meaning ambiguous in the law, it's implied that defining its precise meaning is part of the regulatory work they wanted the agency to do. Now, instead of that principle, the meaning of every ambiguity is open for litigation to select a different interpretation if the court finds it preferable to the agency's.
It pretty much was "without check" unless the action was facially against the text of the governing statute for the agency.
Your example about pollution in the air and in the water is actually close to a good one: The EPA decided recently that they had power over CO2 emissions because of some very mild toxicity, even though that's not the reason why anyone wants to control CO2 emissions. They could easily have argued in your scenario that toxin dumped in the water evaporates and ends up in the air, so it's in their purview, and it might not be wrong under Chevron.
It's more clear if you use the word vest and divest rather than delegation. Congress cannot divest its own legislative powers, nor can it vest them in another branch.
If Congress seeks to regulate air, water, land, and space pollution, from American companies, they should appoint industry experts who intend to leave public sector jobs for lucrative private sector jobs by going to work for the companies the laws need to regulate. It’s worked great for politicians who become lobbyists or prosecutors who go work for big law.
Absolutely!
We should also make sure that no one in agencies is safe. It’s only the industries and courts which can do the work - only for a short while, you know, till congress gets less gridlocked.
Seeing how polarized and partisan things are, it will only be a few decades!
Plus seeing how some of the court positions have been, I can only think that lobbying is going to become a massive business ! So much growth!
> This is why things like warrantless mass tapping and the Patriot Act became 'good law.'...Before anyone says there were still checks and balances - if you feel the need to, you have no idea what Cheveron meant
It's wild to think that either of things couldn't have been possible without Chevron. Congress would have passed anything required to allow those to become law.
Combined with yesterday’s ruling on administrative courts, this amounts to a massive increase in the role of the federal judiciary in the execution of government action.
By 2040 the normal procedure every April will be, rather than filing a tax return, filing a suit in federal court disputing the right of the IRS to determine whether your income is actually ‘income’. Eighty federalist society AI lawbots will automatically file amicus briefs in support of your case. The court clerkputer will autoschedule oral arguments at the first available date, around 2175.
> Combined with yesterday’s ruling on administrative courts, this amounts to a massive increase in the role of the federal judiciary in the execution of government action.
Sounds great. How we got to the point where executive-branch agencies were making rules with the force of law, binding upon the public with no judicial oversight, is a mystery to me, but it's good to see that the courts are taking their responsibilities seriously again, and restoring some measure of checks and balances.
It's ably explained in Roberts' opinion. In short, Congress often left the fine details to the agencies, not least because the laws were often drafted within those same agencies. Chevron was based on the idea that if statutory text is ambiguous the people in charge of implementing said statute were best positioned to figure out what it meant, in accordance with the Administrative Procedures Act (which sets out rules for for how agencies make rules, eg requiring consultations, publications of proposed rules, public comment periods thereon etc.).
> Chevron was based on the idea that if statutory text is ambiguous the people in charge of implementing said statute were best positioned to figure out what it meant
Wouldn't it be odd if the police also acted as the judge in your criminal trial? That's the point here, to separate lawmaking and interpretive power from the enforcers. Consolidation of power is dangerous because it doesn't work.
> in accordance with the Administrative Procedures Act
This ruling made clear that the Chevron doctrine was not in line with the APA,
"Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires."
I think it's more analogous to the overlap between police and prosecutors. Those who are the object of regulatory enforcement can and do bring their objections to courts. Another difference is that agency rulemaking is not made in a vacuum; there's a pretty elaborate rulemaking process which includes (iirc) notices of proposed rulemaking, mandatory public comment periods spanning months, pre-publication of draft rules to allow the possibility of litigation and so on.
> I think it's more analogous to the overlap between police and prosecutors.
Those both fall under the executive branch. Plus, Chevron deference was about the court's actions, not prosecutors'.
> Another difference is that agency rulemaking is not made in a vacuum; there's a pretty elaborate rulemaking process which includes (iirc) notices of proposed rulemaking, mandatory public comment periods spanning months, pre-publication of draft rules to allow the possibility of litigation and so on.
That gives the illusion of a democratic process, but in reality, agency rulemakers are not accountable to the people, whereas Congress is. Keep in mind that the fisheries regulation in question on this case was passed during the Trump administration– so it's not like electing a conservative to head the executive put a stop to excess regulation, which is generally a position that conservatives advocate.
That gives the illusion of a democratic process, but in reality, agency rulemakers are not accountable to the people
I didn't claim it it to be a democratic process, I said it was not an arbitrary or isolated one. The democratic element is in the selection of an executive every 4 years. the rulemaking procedures under the Administrative Procedures Act won't be formally changed by this, but I suspect it'll be lengthenedand more heavily litigated, resulting in less regulatory clarity and slower enforcement.
> The democratic element is in the selection of an executive every 4 years.
That did nothing to help the fishery in this case. The burdens placed upon them came from a lower level bureaucrat, a decision that likely never crossed Trump's desk. That's just one regulation among thousands per year for which there is no accountability.
> Chevron was based on the idea that if statutory text is ambiguous the people in charge of implementing said statute were best positioned to figure out what it meant
Yes, that's an accurate assessment of what Chevron doctrine entails. And again, it is a mystery to me how anyone could ever have thought that this was a good idea, or was in any way consistent with the constitutional separation of powers.
There's been plenty of judicial oversight – courts could always overturn any regulations or actions by an agency that the court decided were not based on a "reasonable" interpretation of the law passed by Congress.
Well, no, they couldn't, that's the whole point of this. Under Chevron doctrine, the courts were deferring to the agency's own interpretation of the law they were testing that agency's actions against, and not applying their own "reasonable" interpretation of the law at all. Reversing Chevron restores the court's responsibility to engage in that interpretation on their own part.
You've just touched upon why this hasn't worked in the past. With Chevron the interpretation was left up to the agency, and courts never got to decide anything.
Without Chevron, the courts will now be able to do exactly what you're suggesting.
You're _actually_ in favor of disabling Chevron, which the SC just did.
That's not what's at issue here, even remotely. Whatever Congress did willingly was enacted in statute law. The entire question here is who is responsible for interpreting that statue law. This entire debate is downstream of legislation.
I'm not sure what was ambiguous about my initial phrasing, but to elaborate for the sake of clarity, I'm talking about the reversal of Chevron doctrine (i.e. the topic of this thread) -- under this doctrine, the federal courts had delegated interpretation of the statutes under which administrative agencies operate to those agencies themselves.
This created a state of affairs in which agencies were indeed making rules that were binding upon the public, and doing so without the courts exercising oversight on their own part to determine whether those rules were consistent with the prevailing statute law.
Now that Chevron doctrine has been reversed, when agencies engage in novel rulemaking that expands the scope of their authority, it will be up to the courts, not the agency itself, to decide whether that expansion of authority is consistent with current prevailing law.
They do now. Before Chevron was reversed, the stuff that appeared to be judicial oversight was being done by the agencies themselves, not by the judiciary.
Essentially every regulating agency will have to get their charter re-written and passed through Congress a second time. While that happens, we can expect to see a flood of cases decided under a variety of standards in lower courts. I think this is going to end up making real mess, it's definitely going to slow regulation and enforcement across the board.
> Essentially every regulating agency will have to get their charter re-written and passed through Congress a second time
More likely a limited subset of those agencies will survive that process due to ongoing efforts of folk whose self-confessed long-term goal is the "deconstruction of the administrative state". With this ruling, all they have to do is do nothing, or obstruct the passing of any law that attempts to return to the agencies what the supreme court stripped from them.
> So agencies will not have any power to actually regulate.
This isn't accurate. Agencies will just need to work with Congress to help them write laws which make sense according to how the agency would like something to regulated.
The less intelligent voters on the far right arent your problem. They are your distraction.
Your problem is the VASTLY more informed elites, who spend their time funding teams and campaigns. Teams who get into the details, who plan the messaging, do the lobbying, and provide the scripts that are repeated to those who listen.
It’s the guy who is a middle manager at a campaign, the lawyers figuring out which courts need to be influenced, the wording of which law to be switched, the people who map out each agency org chart and read the by laws to figure out how to dismantle the agency.
It’s those doctors, those lawyers, those analysts, those consultants and experts who are doing the work.
At the end of the day the crooked politicians trying to dismantle protections for every day Americans in favor of the elite win primaries due to the far right drones, and win narrow elections in a lot of cases due to the same drones.
I live in a rural area and I talk to trump voters plenty. Country folk who aren't old or rich don't give a whit if you call them rednecks, in fact for many the term is a mark of pride.
Common law works very well in practice. Law is a problem that is impossible to solve optimally. Civil law has plenty of weak points - like every complex system.
> Agencies will just need to work with Congress to help them write laws
This is already exactly how it works.
One reason why legislating takes so long is because there is an enormous amount of collaboration between legislators and agencies to get it as right as they can.
Nah, they just have to do more work to ensure the law is clear enough to not attract too many challenges.
Letting a government decide in the face of ambiguous, poorly written laws is so obviously a wrong thing, that you wonder why the original Chevron decision was made.
It really is the other side of the coin to "ignorance of the law is no defence".
It is incumbent on the govt to make the law as clear as is reasonably possible.
You misunderstand the situation. Agencies will still get to make regulations, but where there's any legitimate question/controversy over their interpretation of the law the courts will make the final decision -- final, at least, until Congress modifies the law to get whatever effect they had wanted (which might not be the one the agency wanted).
Also, by and large the vast majority of regulations will stand.
Do you think states will be able to enforce their own pollution restrictions? If so, life in blue states will get comparatively better - I say this as someone who remembers the awful Los Angeles pollution effects of the 1980s.
This is where things can get very complicated. CARB in California, the body that governs emissions, is only possible because the Clean Air Act gives California a specific waiver to enforce stricter emissions standards than the EPA. Is this overreach by the EPA, and if so, can CARB even continue to exist in California?
EDIT: It seems to me like it'll be business as usual for CARB but there's significant uncertainty here. The Supremacy Clause forbids the states from overwriting federal law, but if the EPA loses its enforcement powers altogether then nothing stops California from continuing to exert more stringent emissions standards. However it'll create a lot of uncertainty for automakers if the EPA and CARB is challenged on the grounds of regulating emissions and I'm not looking forward to what would happen next.
OH! I remember what this sounds like! This sounds like Brexit! People I spoke to said “it could go the other way”. Not only was it an impossibility, it was a prayer that the entire country could get lucky.
To which I raise you the 2008 crisis and the defanging of the SEC. Since it looks like people want to neuter weather agencies, I believe its going to be a fascinating couple of years.
Of course. The philosopher king bureaucrats are terrible.
I dont know of which ones we are talking about. But See how well Brexit is going! Plus 2008 was an amazing year.
"Generally, the heads of independent regulatory agencies can only be removed for cause, but Cabinet members and heads of independent executive agencies, such as the head of the Environmental Protection Agency, serve "at the pleasure of the president" and can be removed without cause."
There's already been a big issue with 'regulatory capture' and lobbying in government.
Congress is only going to delegate when some other entity, likely a business, isn't already writing the law/regulation.
A concrete example: Boeing is going to up their lobbying game hard. They can now not only help write the laws, but help choose who says they've broken them. There is no way that it will be good for passengers before it is good for stockholders.
Good thing people from Boeing and Goldman Sachs aren't working in these agencies now, making these rules for the advantage of their former/future employer.
The fact that Chevron has been the law of the land for 40 years means that Congress did intend for it to continue to be the case. It’s ridiculous to claim otherwise.
With only a few minutes thought on the subject, it seems like Congress could explicitly amend the APA to state that the interpretation in Chevron is correct.
They might not do that, but from my initial non-expert read of today's opinion, the Court only looked to the APA, not the Constitution in generating its ruling.
Actually, the side effects of allowing unelected Reg agencies to make decisions (and the quality of those decisions to date) is exactly what is driving their decision.
Congress being parsimonious with laws is probably a good thing...read their Stare decisis paragraphs.
> I'm impressed that they can so easily dispose of 40 years of law making by Congress that assumed that agencies would interpret the statutes and make rules for regulating their area of authority.
I'm impressed that Congress had the audacity 40 years ago to attempt to take judicial authority away from its constitutional locus in the courts and re-assign it to executive branch agencies, expecting them to be exercise reliable oversight over their own authority.
>> Now Congress is going to have to specify every possible consequence of laws in the statutes, otherwise a judge will decide.
It has already been that way for a while. From the decision:
"Because Chevron’s justifying presumption is, as Members of the Court have often recognized, a fiction, the Court has spent the better part of four decades imposing one limitation on Chevron after another. Confronted with the byzantine set of preconditions and exceptions that has resulted, some courts have simply bypassed Chevron or failed to heed its various steps and nuances. The Court, for its part, has not deferred to an agency interpretation under Chevron since 2016."
...
"Given the Court’s constant tinkering with and eventual turn away from Chevron, it is hard to see how anyone could reasonably expect a court to rely on Chevron in any particular case or expect it to produce readily foreseeable outcomes."
I hope you enjoy drinking your poison water and breathing your poison air as much as the companies that skirt environmental regulations enjoy their cost savings.
I think a technocratic executive bureaucracy, created and overseen by the legislature, is better than demanding the legislature directly craft all regulations and have judges adjudicate every nuance.
Why do you think that's better? Whose priorities and interests do we expect these 'technocratic executive bureaucracies' to pursue if allowed to be the arbiters of their own authority, and what mechanism would ensure they remain accountable to the public and operate within the applicable constraints of prevailing law and the constiution?
Why do you think a crippled group of 500 generalists should write every single detail of regulatory code for every facet of American life?
Why do you think federal agencies are arbiters of their own authority? Congress created them, Congress can reel them in.
I don't mean to say that executive agencies shouldn't be held to the Constitution or the law. Who says they shouldn't? But they should be allowed to have a broad mandate.
Maybe, MAYBE some kind of rubber stamp process where legislators get a 90 day window on rejecting new regulations with a "default approve". But I have no faith that a modern society can have all rules and edge cases pre-emptively defined in law.
> Why do you think a crippled group of 500 generalists should write every single detail of regulatory code for every facet of American life?
They shouldn't. No single entity should ever be allowed to "to write every single detail of regulatory code for every facet of American life".
Thankfully, with this decision, we have restored a situation where law and policy are developed and refined through the interplay of disparate branches of government with ultimate accountability to the public itself, with edge cases handled by the specialists who actually have the relevant expertise in interpreting law.
> I don't mean to say that executive agencies shouldn't be held to the Constitution or the law. Who says they shouldn't?
Well, that's the implicit argument of the people who are saying they should continue to be allowed to act as the arbiters of their own authority, without judicial oversight.
> But they should be allowed to have a broad mandate.
Unelected appointees who are hired on the basis of their expertise in a technical field, without necessarily having any special competence at handling the normative aspect of their duties, should absolutely not have a broad mandate to decide what the limits of their own authority are.
>They shouldn't. No single entity should ever be allowed to "to write every single detail of regulatory code for every facet of American life".
You shouldn't be having this conversation if you do not understand the basic civics of the US government and the role the legislative body plays, let alone your own damn argument.
You're right, I shouldn't be having this conversation if I didn't have a basic understanding of the fundamental structure of the US government. Since I have a relatively advanced understanding of that topic, however, we shall continue.
So, the US Constitution distributes political authority among three distinct but co-equal branches of government. Legislative authority is assigned to Congress, executive power belongs to the president, and judicial power is the purview of the Supreme Court.
The Constitution makes no mention of administrative agencies -- these are entirely creatures of statue law subsequent and subordinate to the Constitution, and did not begin to exist significantly until more than a century after the Victorian
Constitution went into effect.
There is no explicit authority for Congress to delegate legislative power to any other institution, and whether this is entirely legitimate remains a master of some debate.
The Constitution further explicitly assigns judicial power to the Supreme Court, and in no way obligates the court to delegate its inherent duty of statutory interpretation to executive branch agencies, least of all to defer to those agencies in establishing the boundaries of their own statutory power.
Finally, the Constitution enumerates the scope of the legislative power assigned to Congress, and explicitly reserves all non-enumerated powers to "the states or the people respectively". There is no basis whatsoever in our system of government for any single institution to unilaterally "regulate every facet of American life", least of all at the federal level.
1. Congress creates an executive agency called "Protect The Environment Agency" and tasks them with creating and maintaining regulations around pollution - air, ground, water, etc.
2. The PTEA makes a regulation stating that, per their mandate, all people must personally declare plastics are bad for the planet or else they get taxed $100 a year. This is clearly a violation of the first amendment.
3. You are suggesting that under Chevron, no one would have any remedy for this unconstitutional behavior?
3a. That a person would not have agency to sue in federal court to say this regulation is unconstitutional?
3b. You suggest Congress has no power to explicitly prohibit the "PTEA" from imposing individual fines related to speech on the environment?
---
It seems from another comment, regarding 3b. you agree Congress can make laws adjusting the scope of agency power. That leaves 3a.
> 3. You are suggesting that under Chevron, no one would have any remedy for this unconstitutional behavior?
Well, this example includes the agency acting in a way that Congress itself would not have the power to authorize in the first place, so this is a bad example. Statutory interpretation doesn't really matter here, because even if the statute did authorize the PTEA to implement this policy, it would still be unconstitutional, so Chevron wouldn't even come into it.
Why make up outlandish examples, though, when we have the examples of the actual cases to look at? Loper involved a federal law requiring operators of certain fishing boats to allow for inspections to ensure compliance with fishing regulations. The agency tasked with enforcing that law decided for themselves that the statute conferred them the authority to bill the fishing boat operators for their inspectors' expenses when going out to make the inspections.
Under Chevron, the court would not have be able to judge for itself whether or not the statute actually authorizes the agency to charge the fisherman for the travel expenses of inspectors, and would have to defer to the agency's own interpretation that it does.
> 3b. You suggest Congress has no power to explicitly prohibit the "PTEA" from imposing individual fines related to speech on the environment?
Of course they do, by passing a statute. Which is then up to the courts to interpret and hold the PTEA accountable to -- with the reversal of Chevron, interpreting that statute would thankfully no longer be up to the PTEA itself.
I'm reading some admittedly biased essays reassuring me this is bad. Do you suggest a longer form essay (besides the opinion) that defends this decision?
(You don't have to, I won't blame you or be snide if you don't. Because it really seems like we disagree ideologically).
Loper seems like it could have been narrowly interpreted but threw the baby out with the bathwater. I don't want a judge deciding what levels of lead in the water system are "clean enough" or how deadly a substance must be before the FDA decides it isn't fit for human consumption. I really would rather the elected executive with subject matter experts interpret then enforce those laws within reason.
>Under Chevron, the court would not have be able to judge for itself whether or not the statute actually authorizes the agency to charge the fisherman for the travel expenses of inspectors, and would have to defer to the agency's own interpretation that it does.
So? Congress sees the regulations passed under their authority. Why shouldn't they be the ones to call an enforcement action out? Why couldn't the fishermen petition their Representative?
> I'm reading some admittedly biased essays reassuring me this is bad. Do you suggest a longer form essay (besides the opinion) that defends this decision?
Perhaps you should skip over all of the biased intermediaries, and just read the ruling itself.
> Loper seems like it could have been narrowly interpreted but threw the baby out with the bathwater.
What baby? What's desirable about executive-branch officials being given free reign to interpret the statute law that defines their own authority with no oversight? What does anyone -- other than those officials themselves -- gain out of allowing that?
> I really would rather the elected executive with subject matter experts interpret then enforce those laws within reason.
Subject matter experts at what? These are all normative questions -- yes, factual circumstances frame the real-world context they apply to, and yes, technical expertise may be a relevant and important input, but actually making the decisions means making value judgements, weighing cost against benefits, making risk/reward tradeoffs, reconciling the conflicting interests of involved parties, making sure everyone's rights are protected, etc. How does technical expertise in the factual context give anyone any special expertise in making the normative decisions?
Subject-matter experts testify before Congress all the time. Research institutes publish white papers; think tanks draft model statutes and explain them to legislators; expert witnesses testify in every sort of court case imaginable. All of that is important and necessary, and is absolutely not going away. But the idea that having technical expertise in some empirical domain is sufficient qualification to assume absolute control over decision-making, and toss out our whole system of democratic legislation and common-law jurisprudence -- both of which have always relied on experts to provide input on applicable facts -- seems absolutely incomprehensible to me.
And that's all even assuming that the people who staff these agencies actually are genuine experts with wholly good-faith intentions. Sure, there are definitely people like that involved. But there are also lots of bare-minimum jobsworths, power-tripping petty officials, corrupt self-aggrandizers, and people who bullshited their way into "expert" credentials, all operating within an institutional system rife with perverse incentives and structural limitations. In other words, they're just like every other organization composed of human beings in our society. So why would we wish to insulate them from the system of accountability and oversight that we expect to hold sway everywhere else?
> So? Congress sees the regulations passed under their authority. Why shouldn't they be the ones to call an enforcement action out? Why couldn't the fishermen petition their Representative?
This whole conversation is totally downstream of any involvement by Congress -- they have already done their job by passing whatever statutes are currently in effect. The question here is whose job it is to interpret the statutes that Congress has already passed.
Congress is absolutely free to monitor the behavior of administrative agencies, and past new legislation to expand, contract, or clarify their authority. They indeed do so semi-regularly. But then those statutes will still need to be interpreted and applied to edge cases by people whose job it is to understand the statutes, i.e. the judiciary.
You seem to be trying to factor the need for interpretation of the law entirely out of the question, and I can't even begin to comprehend that.
It comes down to this: I don't think our system is built to withstand the level of bad-faith bullshit that corporate interests will throw at a justice system trying to overturn every regulation not written in stone by Congress. And I don't trust Congress to be able to function at all right now, much less be able to respond to the level of intervention this decision will require them to have.
Congress writes a law saying "FCC, go guarantee good access to Internet for people" and FCC says "OK, 100mb is the minimum and every ISP should offer that". You think an ISP should be able to sue, and a judge should be able to block, an FCC attempt to implement "good access to Internet" as they see fit? I don't trust the judiciary not to completely supplant or destroy the power that should belong to the executive agency. That level of review defeats the entire purpose of delegating regulatory power to the executive agency.
I get the rationale of "wait what if the exec agency does something really wild" but I think the bar that is required to strike regulations should be really, really high.
I really think I understand your position. I get your stance on normative interpretation. I think the Chevron system was the way to do things best. Maybe if we develop a framework for justices to force a legislature to reconsider the question, not to make the final decision themselves, it would be more reasonable. But judges aren't accountable to anyone.
So maybe an elected subset of the judiciary? Or a "push system" for the house to vote on all the issues that judges find. But not judges making the final call and waiting for the legislature to do something about it.
> It comes down to this: I don't think our system is built to withstand the level of bad-faith bullshit that corporate interests will throw at a justice system trying to overturn every regulation not written in stone by Congress.
There's a lot to unpack here. First, I don't understand why you expect corporate interests to work hard to overturn the regulations that they themselves often benefit from, and sometimes themselves advanced via influencing and co-opting regulatory bodies.
Second, I don't understand why you think that the judicial process can't sort out bullshit from solid legal reasoning -- that's its entire purpose -- but somehow trust functionaries in opaque bureaucracies to do the same.
Finally, I don't understand why you expect that Congress would have anything to do with this. This is about who interprets the statutes that Congress has already passed, understanding that statutes will not contain detailed specifics about every regulatory scenario. Regulatory bodies will continue to do what they do, but will simply no longer be able to expand their authority on their own prerogative without being validated by due process.
> Congress writes a law saying "FCC, go guarantee good access to Internet for people" and FCC says "OK, 100mb is the minimum and every ISP should offer that".
ISPs are already able to sue and always have been. Courts are still adjudicating every such dispute. Nothing is changing in this regard.
> You think an ISP should be able to sue, and a judge should be able to block, an FCC attempt to implement "good access to Internet" as they see fit?
Of course they should! And the FCC should then be required to argue why they think the specific actions they are trying to take are consistent with the legislative mandate, with the court giving a fair hearing to the other side, and then making a determination based on their expert application of law, to determine whether the thing that the FCC wants to do is legal, completely irrespectively of whether it is effective policy.
I can't wrap my head around why you think this is bad, not even a little bit.
> Maybe if we develop a framework for justices to force a legislature to reconsider the question, not to make the final decision themselves, it would be more reasonable. But judges aren't accountable to anyone.
No, this entire matter is downstream of legislation. Congress can reconsider any question at any time, and then pass new statutes to adjust the laws. But someone still needs to be responsible for interpreting those new statutes. And that someone is the judiciary.
> So maybe an elected subset of the judiciary? Or a "push system" for the house to vote on all the issues that judges find. But not judges making the final call and waiting for the legislature to do something about it.
No, that doesn't make any sense. Congress can legislate at a million miles per hour, and pass all manner of detailed statutes, but those statutes still need to be interpreted and adjudicated, and doing so is inherently and constitutionally the role of the judiciary. No structural changes are necessary apart from restoring proper separation of powers and checks and balances, which is exactly what reversing Chevron does.
You are trying to solve a nonexistent problem with solutions that are themselves real, worse problems.
I'm processing what's being said. Maybe the problem is me.
I've lost faith in the court system recently.
You have faith in a court system to only determine questions of legality, not policy. I don't have that. I see our federal courts as political tools, completely unaccountable to the people and whose rulings are never adjusted by the Congress. I wholeheartedly disagree with textualist/originalist readings of the Constitution.
At least a bureaucracy operates at the direction of an elected position, I suppose.
I'll have to think about the discussions here. I still like my idea of Congress being brought back into the loop to be required to respond to judicial decisions overturning regulations, to ensure the agencies can continue doing what they need to do if it is "the will of the people". You kept on saying this stuff is "downstream of Congress". I'm saying to make it a feedback loop so it must get back in front of Congress after judges make a decision.
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EDIT: Oh and SCOTUS just gave the president absolute immunity, and among other things said that judges couldn't look at presidential intent when determining if an act is "official or unofficial conduct" because it would open the president up to endless legislation.
So judicial review is okay when it's talking about fines on boats, but not when it's about a president overturning elections or assassinating political leaders.
What an odd response that is completely besides the point of what I quoted. I didn't quote you on the delegation of powers. I quoted you as saying no body of government should be able to make all the laws. You have advanced knowledge as you say, maybe you can explain yourself, then?
> I quoted you as saying no body of government should be able to make all the laws.
Which is correct. Congress's role is to legislate on matters within the scope of its enumerated powers, as subject to judicial review, and absolutely not to "make all the laws" that regulate "every facet of American life".
There are plenty of matters of law that are not delegated to Congress, and are reserved e.g. to states, and plenty of facets of American life that are outside the bounds of political intervention entirely, where people are responsible for making their own decisions in a pluralistic fashion.
>Well, that's the implicit argument of the people who are saying they should continue to be allowed to act as the arbiters of their own authority, without judicial oversight.
No, that's no my implicit argument so you're wrong on the facts. And you keep saying they are the arbiters of their own authority.
I'm afraid that it's you who are wrong on the facts: Congress does not exercise direct oversight over the behavior of these agencies.
Congress passes statutes that establish and grant authority to administrative agencies, and may from time to time pass new legislation that adjusts prevailing law, but they do not intervene to exercise oversight under the current statutes in effect.
That oversight -- evaluating the specific actions of those agencies and determining whether they are within the scope of current law -- has always been the role of other institutions.
Conventionally (and constitutionally), responsibility for for that oversight -- i.e. determining the meaning of the applicable statutes, and deciding whether specific behaviors and actions are within the law -- belongs entirely to the courts.
A few decades ago, the courts decided to abdicate this responsibility, and instead defer to those agencies' own interpretation of the statutes they operate under, indeed having the effect of making them "arbiters of their own authority". This is what Chevron doctrine refers to, and is what the new court decision has finally reversed.
Agreed. If Congress or Executive agencies don't want the judiciary interpreting the laws in various ways they should write laws with no room for interpretation.
The couts giving/forcing (back) power to the legislature where laws are supposed to be written, deliberated, and passed is a very good thing.
Exactly how do you write a law that has no room for interpretation? What does that process look like exactly, and how do you achieve it at scale in a changing and dynamic world where the meanings of words change over time?
I think what you’re saying is the equivalent of “just write software without bugs and everything will be fine”
> Exactly how do you write a law that has no room for interpretation?
Funny question in light of Fischer vs. US. The majority found that the text of a law didn't mean what they believed it should, so they threw out the text and went with their feelings. How can one write a law with no room for interpretation, to be understood by a court who can't be trusted to retain the letter of the law?
Generally speaking, a specific law is always better than a vague law. It allows for more fairer enforcement and better understanding of the law concerned.
If the words written on paper don't actually mean anything and can be interpreted wildly, what is even the point of passing laws?
Writing and passing unnecessarily vague laws open to interpretation and saying your job is done is like Bethesda publishing a bug infested game and saying they have a finished product. No, your work is shit, go back to the workshop.
Well I think there's quite a difference between what you originally said ("with no room for interpretation") and what you now say ("don't actually mean anything and can be interpreted wildly").
I think lawmakers strive to write laws that are precise enough that they can't be interpreted wildly, but I don't think it's reasonable to expect lawmakers to craft laws that have no room for interpretation.
Hate to break it to you, but your Libertarian fantasy will not work out the way you think it will.
We are going to see more pollution, more child labor, more exploitation of poor immigrants and more hoarding of wealth by the few among other side effects.
There's a reason only the "conservative" SCOTUS justices have billionaire "friends".
I think describing a 2 line statement as civil discourse worth of engagement really puts some pressure on those 2 lines. Following it up with disagree with words, not downvotes adds to the weight of those lines.
Given the effort ratio, I wouldnt condone downvotes, however I wouldnt be surprised if that was the easiest response.
Also - Downvotes have existed since, at least, slashdot. They are not censorship. They can be misapplied, but it’s not censorship.
This site is also actively moderated. It’s part of the censorship industrial complex as trust and safety is being called now.
At best the person you referring to is ignorant how reality works. But they are also indistinguishable from someone who doesn't value words at all and is lying for political gain.
Why should such be allowed?
Edit - and remember you're not allowed to downvote me because I'm being perfectly civil. But the only way to stop me is to downvote me or get the mods to censor me.
> So agencies will not have any power to actually regulate.
And that is a bad thing? If it is, I'll take it. The agencies have been ineffective at their stated missions. They have been revolving door power grabs since the end of WW2. You know, that time when we let all those "former" Nazis into prominent roles of government agencies?
It's not like the EPA stopped PFAS from contaminating water all over Earth. Or microplastics being embedded in the penile tissue of most men...Among the other "miracles of modern science". The EPA is too busy going after small landowners doing water management.
And if agencies are so wonderful. Why don't we have a Department of Peace & a Department of Prosperity for All? So the agencies cannot make up their own laws anymore? Cry me a PFAS laden river.
This basically flips the judicial review logic from "did the regulator act within the scope of the law?" to "are there other ways the regulator could have acted that would also be within the scope of the law? If so, the judge decides which set of actions the regulator must take"
I.e., anything Congress does not explicitly state in a law is now determined by federal judges. At the extreme, this is aggrandizing a very wide scope of power to low-level federal judges to essentially ignore congressional intent.
Haha no. I’m fine with the US being a Christian nation. I just think a lot of people make a big deal about church and state and the two things are the same thing.
As I tried to explain to people in 2016, your kids are going to be living with the consequences of your vote for generations. We are in a new era of judicial supremacy and they are out of bubble gum.
Are you from Latin America?Martinelli (Panama) has been complaining of "Civil Dictatorship" since being on trial and hidden inside the Nicaraguan Embassy. Chavez (Costa Rica) is denouncing a Democratic "Dictatorship then Tyranny" because he finds independece of powers (Executive, Legislative and Judicial) cumbersome.
Dangerous direction, people complaining about power balance checks
The already extremely powerful judiciary continually increasing their power and removing the power of the legislative and executive branches is not exactly something that encourages power balance checks.
As for whether or not the person you are replying to is from a certain region of the planet - what are you trying to imply here? I'm from the USA - does that mean that I agree with everything Trump or Biden says? This is a weird, and IMO, distasteful, way to make an argument.
There are political currents which critize traditional media and independence of powers. Like another current touting "A new world order" (offtopic)
The balance of powers is paramount. And it is usually the executive which grabs it when the oportunity arises: not only wars, but also exceptions like terrorism prevention (overblown) and the recent covid pandemic (all countries)
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I am really not a fan of the current Supreme Court, but this looks to be a good ruling. Agencies get carried away by their power, and this power requires stronger checks by real courts, not by the fake agency courts that always rule in favor of the agency. I make no judgment on how this ruling will be used or abused.
To continue, although people will complain about the risk of environmental harm from this ruling, this harm is more a function of easy loans to companies that emit pollution. If you were change the money supply back to being gold-backed, the easy loans go away, the "growth at all costs" mantra dials back, and the ongoing environmental harm thereby modulates itself. It is the root cause of the unsustainable growth and environmental evils we see.
Also its funny because the original Chevron case was about how under Reagan the EPA re-interpreted the Clean Air Act to make it easier for companies to introduce new pollution sources. The EPA was sued and the lower courts backed the original interpretation of the Clean Air Act. This was overturned by the Supreme Court in the Chevron decision which said the courts must defer to the EPA's new interpretation.
So the environmental impacts of this decision are hardly clear cut.
So, I don’t think I’ve seen this language used, but does this basically end the use of “executive orders”? That’s what executive orders were right, advice to agencies on how to interpret laws?
Congress can’t write good laws (good = clean, unambiguous) due to a variety of reasons, most of which are just political and not practical reasons.
Here’s hoping this decision causes Congress to write laws with more clarity now that they cannot be as sloppy and get away with it.
There may be much upheaval in the short term, but for that reason alone, I think it will have a positive impact on the country.
One other reason I think this decision is good - if we are innocent until proven guilty, then ambiguities should go in favor of the individual not the State.
> Congress can’t write good laws (good = clean, unambiguous) due to a variety of reasons, most of which are just political and not practical reasons.
A massive reason in this case is that congress are not matter experts, laws are already large and unwieldy, and agencies need flexibility in their work as, as ponderous as they are, they're still more nimble than congress and need that in order to react to changes in the area they regulate.
> One other reason I think this decision is good - if we are innocent until proven guilty, then ambiguities should go in favor of the individual not the State.
I'm sure the individual will greatly benefit when the EPA's regulation of the next great carcinogen is struck down on grounds that congress has not explicitly restricted it.
>I'm sure the individual will greatly benefit when the EPA's regulation of the next great carcinogen is struck down on grounds that congress has not explicitly restricted it.
This is the real motivation; the Lead Paint voting bloc is dying off and desperately needs replacing if current political demographics are to be maintained
>A massive reason in this case is that congress are not matter experts,
Perhaps they should not be crafting new laws concerning things that they do not understand. If this results in fewer new laws, that may be better. If this also results in their having to spend more time doing homework on new urgent laws of greater importance, that may also be a good thing.
A return to the Constitutional prescription that Congress writes the laws, the Executive administers them, and the Courts interpret them certainly does not seem inappropriate, and discarding this framework in the name of arbitrary desired outcomes like EPA rulings feels off. If it's a bandwidth issue, maybe we should up the number of judiciary and lower the number of extra-judicial agency bureaucrats.
> Perhaps they should not be crafting new laws concerning things that they do not understand.
Which is why instead of crafting new laws concerning things they do not understand, they appoint agencies for the purpose of understanding the things and regulating them.
> If this results in fewer new laws, that may be better.
It certainly does if you don't like your patent medicines being regulated.
> If this also results in their having to spend more time doing homework on new urgent laws of greater importance, that may also be a good thing.
This ruling will do the exact opposite at best. Again, the point of federal agencies is to take on the burden of understanding and regulating specific domains. That way congress can work on the broad strokes and leave the details to expert they can consult.
> A return to the Constitutional prescription that Congress writes the laws, the Executive administers them, and the Courts interpret them certainly does not seem inappropriate
That is not what this ruling does. This ruling is a decision by the courts that policy is decided by the courts. Even though congress delegates to executive agencies for that exact purpose.
Literally the first test of the Chevron doctrine is "does the law already cover this specific issue". The second test is "is the agency allowed to interpret or regulate this issue under its statutes".
If the first is a yes, then the agency has no grounds to go against congress. If the second is a no, then the agency does not have standing. Otherwise, the courts defer to the agency as the agent of congress on the matter.
> If it's a bandwidth issue, maybe we should up the number of judiciary and lower the number of extra-judicial agency bureaucrats.
That does not follow, makes absolutely no sense, and would in fact do the exact opposite. Because under the completely wacky idea that agencies have no rulemaking or regulatory powers they would have to be staffed by 90% lawyers as they would have to bring everything to court.
Again, against the express purpose of their establishment and statutes.
Time for Congress to start aggressively using its express constitutional power (under the Exceptions and Regulations Clause of Article III) to circumscribe federal courts' power to set aside congressional directives such as the ones that led to Chevron deference. "Separation of powers" is nowhere to be found in the Constitution; it's a bootstrapped creature of power-seeking judges.
> "Separation of powers" is nowhere to be found in the Constitution; it's a bootstrapped creature of power-seeking judges.
Article I, Section 1 says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article II, Section 1 says: “The executive Power shall be vested in a President of the United States of America.”
Article III, Section 1 says: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Three specifically named powers, which are specifically assigned to three separate bodies, at the beginning of three separate sections. Gee, I wonder what the framers could possibly have been going with all this? I wish they had written papers elaborating on this concept that’s clearly reflected in the text: https://press-pubs.uchicago.edu/founders/documents/v1ch10s14...
It’s hard to imagine anything that is more part of the constitution than separation of powers. If you handed the constitution and a copy of the federalist papers to an alien who knew nothing else about our society, they would understand that the constitution requires separation of powers.
The early precedents were things like delegating to the customs department lists of items for tariff schedules. Virtually all the precedent reallocating the power to make law was upheld under the threat of court packing in the 1930s and is suspect and ripe for revisiting.
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
Yes, and what exactly is "the judicial Power"? Roberts, C.J., famously said that it was that of an umpire calling balls and strikes.
As a far-fetched analogy, Chevron deference is a bit like having a committee of uninvolved players and managers determining where the strike zone will be for each ballpark. If the team owners agree on such a meta-rule, then the umpires need to call balls and strikes based on that meta-rule, using the strike zones determined by the committee. It's not up to the umpires to decide that the owners can't delegate that authority to the committee.
If Congress had their shit together enough to reign in the federal courts, there wouldn't be so many federal laws that were ambiguous in the first place. Not sure what the shockwaves of this Chevron decision will be, but I am a fan of forcing the legislative branch to legislate again.
This isn't going to make Congress write more legislation. No politician that was extremist is going to start compromising and proposing legislation. This simply shifts power from the executive branch to the judicial branch. It just makes the question of which party appoints federal judges even more important in the outcome of senate/presidential elections.
They could expand the courts, institute justice term limits, or in this specific case, pass a law that says ambiguous terms in a law are to be interpreted by the Executive branch. If they are lazy, they could probably just stick in a clause that says the specific rules for this section will be created by the EPA or whatever relevant agency; and that would also comply with the ruling.
That’s actually one both parties agree vehemently on, it just depends on who can get what they want most out of the approval.
It’s a negotiation tactic effectively, and no president wants to be behind the failure to do so, which leads to the opposing party having the upper hand to negotiate substantial wins in the process.
I found this[0] overview from a few months ago to be helpful, and doesn't fall foul of describing the justices' views as coming solely from their being conservative or not. One example:
> Justice Neil Gorsuch told Prelogar that he was less concerned about businesses subject to changing regulations, observing that the companies “can take care of themselves” and seek relief through the political process. Instead, Gorsuch pointed to less powerful individuals who may be affected by the actions of federal agencies, such as immigrants, veterans seeking benefits, and Social Security claimants. In those cases, Gorsuch stressed, Chevron virtually always works for the agencies and against the “little guy.”
This is a complete disaster. The ramifications will be felt for decades. Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Huge potential impacts to product / revenue, not just legal fees to fight everything. And immeasurable impacts of cowing all bold business decisions to avoid the ire of any person or group, no matter how niche or extreme.
Even if a new supreme court reverts this decision, now people are going to be concerned about the unpredictability of the Supreme Court.
> Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Huge potential impacts to product / revenue, not just legal fees to fight everything
Businesses already have to deal with frequent litigation, including class-action lawsuits even in areas that overlap with regulatory agencies.
Quite to the contrary of what you are suggesting, reversing Chevron doctrine will allow the courts to develop a body of solid precedent surrounding these areas of law, and create a more stable legal framework, rather than the status quo of opaque, politicized agencies having the power to re-interpret their authority and change the regulatory environment at their own prerogative -- stare decisis doesn't apply to executive agencies, but it certainly does apply to the courts.
No, again, you've got it exactly backwards. "Solid precedent" can now be established via the development of jurisprudence under stare decisis, as is the judiciary's role.
Under Chevron, agencies themselves were interpreting and re-interpreting statute law as they saw fit, and there was no binding precedent at all.
Yes, sometimes that's necessary when bad rulings slip through. If there was no mechanism to reverse bad precedent, we'd be in a pretty bad situation -- we wouldn't have this ruling, we wouldn't have Brown v. Board of Education, etc.
But the courts do this carefully and infrequently, and create a level of stability in the law that's far stronger than allowing the ever-changing landscape of statutory law and administrative rule-making to provide the final say over complex questions.
That's exactly the point of this ruling -- the courts had delegated the responsibility for shaping jurisprudence that defined the limits of administrative power to the administrative agencies themselves, allowing those agencies to interpret and re-interpret the boundaries of their own authority in pursuit of whatever ephemeral issue they were focused on at the moment.
This was an abdication of the courts' own duty, and it's a very good thing that they've decided to take responsibility for it once more.
oh yeah because our courts have definitely shown themselves to be non partisan, like how one of the republican supreme court justices thinks they are at war ideologically against the other side and must win
I fail to see how this parade of horribles will happen. Under the Chevron regime, any random person could still sue, and provided that the lawsuit survived an initial motion to dismiss, then any questions involving an administrative agency policy would defer to that agency's interpretation of their own policy and the law authorizing that policy.
The only change now is that the agency will have to demonstrate to an independent Article III court that its policy is correct and compatible with the authorizing law. Stare decisis will still control the lower courts once new precedents are set, and people will have meaningful appeals again.
There might be some disruption in the short term, but in a decade or two, I expect the new normal will be fine, but with the benefit that people can meaningfully appeal self-aggrandizing administrative state rulings.
> Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy.
Spurious lawsuits annoying small businesses is already the case in America. I've defended against plenty of them. The concept of someone using random lawsuits to target local courts to overturn federal agency policy is very far removed from a businessowner's mind compared to the other types of litigation that actually happens on a regular basis.
Think bigger. You're NovoNordisk. FDA says ozempic is safe for use. A local California court bans it because they say it hasn't been properly tested and endangers Californians. Billion dollar market, wiped off the map. Now New York is following path. You can try to fight it but either way you've suffered incredible repetitional damage: FUD (fear uncertainty and denial) is now forevermore "the drug that California banned for being unsafe."
Or, imagine a texas court banning COVID vaccines.
These are not hypotheticals, these are real court cases that could now swing against agencies.
Whatever your opinion on specific factual matters, everyone should be concerned about widespread disorder.
Standing doesn’t matter. A conservative website creator was able to take a case all the way up to the Supreme Court without ever have been sued. They just made up a situation where an alleged customer demanded they make a gay website. The customer never even existed. This is on top of the Supreme Court literally legalizing bribing of government officials across the country as long as the payment is made after the favor and not before. Then it’s just a gratuity and not a bribe. The entire system is rotten at this point.
That website creator sued their state's regulatory agency, and "sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability, and a credible threat that Colorado will prosecute them under that statute."[1]
Yes, the alleged "situation" may have been contrived, but that doesn't change whether they have standing to sue their state to challenge what they see as an unconstitutional law.
Do you think their only recourse should be to break the law, and risk the penalties associated with that if it does turn out to be constitutional?
The strange thing there is that for a few decades now federal courts have required a plaintiff to have suffered some sort of injury before they can sue, and the notion that a credible threat is equivalent to such injury seems to overstretch that concept.
Also, the ‘credible threat’ of being prosecuted was based on the agency simply declining to state that it would not sue if Smith violated the law. Seeing as no such violation of the law had even been alleged, it seems incredibly flimsy to say there was a threat at all, let alone a credible threat.
I bet a lot of commenters here don't understand the extent to which this ruling will apply.
The ruling affects cases where statutes do not explicitly grant interpretive authority to the enforcing agency. When a statute clearly delegates interpretive authority to the enforcing agency, the agency's interpretations will definitely prevail in the courts.
So this ruling is not as terrible as most comments think. If anything, it's very rational. If a law explicitly applies to X, you don't want the executive branch applying it to Y and Z. That's how you create a rogue executive branch (even though you may be well intentioned).
Before proclaiming that this outcome is horrible - Please consider that the Good Guys (your opinion) might not win the election in November. And that you might not want the courts auto-deferring to all the plausible-ish interpretations of ambiguous laws which gov't agency officials appointed by the Bad Guys (your opinion) might suddenly add the Official Agency Interpretations next year.
The Chevron deference case is one of the most cited court cases in the US and this decision threatens to throw Federal regulations into chaos as a bunch of Districts redecide decades of precedent. Since the appeals courts can reach contradictory decisions and keep them in play until the Supreme Court makes a conclusive decision, any company at the national level will have to figure out how to square that circle.
Regardless of where you are on the political spectrum, this is going to cause a practical mess just like the Dobbs decision, except Chevron deference impacts every area of federal regulation.
This is more like deleting the backups then shutting off the A/C in the server room.
It's not going to be feasible to run the country this way. So something has to give, either the agencies tell SCOTUS to fuck off, agencies stop operating, or they file suit for every little thing and clog up the already overworked justice system (which I guess means that we end up with behind closed doors mediation).
Since the President is the boss of agency heads, I guess it's up to the President to decide their favored course of action.
The 1984 decision only codified the status quo: federal agencies were already doing what it affirmed as lawful. The EPA didn't start functioning properly in 1984.
If the EPA currently relies on its private interpretation of ambiguous passages of federal law, that's messed up and needs fixing. Have them write a draft bill to codify how they currently interpret vague law, and let a senator introduce the bill on the floor.
Yes, sometimes you just need to refactor the code in prod by surprise via force pushing and telling everybody else to start fixing their failing integration tests.
The courts are incapable of refactoring by design. They can only decide the cases litigated before them, they can't take a holistic view of the legislation and put forward coherent reforms.
In my career I have never seen messy refactorings go well. They are carefully planned and executed piece of by piece instead of throwing everything out of the window.
That is not a question of good guys and bad guys. It’s just that a system where the legislative branch micro-manages things like electrical safety in new homes to what you’re allowed to put in baby formula is completely unworkable. If “the bad guys” get into power, then the agency is still checked by the courts that are perfectly able to stop blatant overreach.
OTOH, congress physically cannot keep abreast of the state of the art in all of medicine to have an informed opinion on whether to ban or control a specific compound that turned out to be carcinogenic, to give but one example.
It is incorrect, but widespread among left-leaning pundits, that this ruling will force Congress to micromanage everything that would normally be left to the agencies. Agencies can still make rules. If Congress would like to be out of the details business, they can even write statutes that explicitly delegate rule making to the agencies. What this does is prevent agencies from acting in ways that are easily interpreted as _not_ conforming with law. The Chevron test told judges that they have to defer to the agencies _even when_ they conclude that the agencies are misreading the laws, as long as the agencies aren't being manifestly unreasonable. This has led to agencies very savilly expanding their power without any new statutory authority simply because they have good lawyers who know how to craft it in a way that survives a Chevron test. The SC just said something I find completely reasonable: from now on, judges have to interpret the law as its written and decide cases based on whether or not the agency is complying with the law. They cannot abrogate their duties to be the experts on legal analysis simply out of a desire to defer to the agency's interpretation. I think it's correctly decided because Chevron is an illogical mess -- why is it that in one situation and one situation only, our legal system treated one of the parties in a suit as inherently having more authority to intepret the law than a court itself? It is not persuasive to me that we should say "well, because the courts can't be experts," as this is not an argument that works in any other situation where a court must make legal rulings in the face of experts -- such as bankruptcy proceedings, antitrust cases, etc.
This decision leaves it perfectly up to Congress to write a law stating "such and such an agency shall determine, maintain and enforce electrical standards". It just means the agency can't decide to do so on their own.
Currently, in the minds of much of the American electorate, it is good guys and bad guys.
You are correct that the US Constitution is poorly suited to governing a nation of ~1/3 billion people in the modern world. Unfortunately, the current political environment make fixing things impossible.
What political environment makes fixing things possible? Countries scraping their constitutions tend to be poor ones just finishing revolutions which more often that not creates dictators (1799 France included). Except, very few exceptions
Few countries have such a weird fetish for a 1770s bit of legislation. In most countries with a written constitution, it was at least updated at some point in the 20th century. It is not a bad thing. The state of the art in all domains has progressed quite a bit in the last 2 centuries, including in philosophy, political science, and plain science in general.
The US is pretty much alone in that respect. So it’s easy to say that a lot of terrible regimes were enabled by constitutional change. Most of them were. But so were most of the regimes that are much more democratic than the US.
This mirrors the weird fetish that some American Christian’s seem to have with their bible. These things were written by humans. So, of course they are imperfect and can be discussed and improved upon.
France went through counter-revolution, counter-counter revolution, empire, revolution, restoration, revolution, re-restoration, revolution, empire, revolution, republic, WWII, and republic. The US never came anywhere close this kind of collective trauma, even at the worst times of the secession war. Most countries are not protected by two ocean, a small border in the south and a compliant neighbour in the north. Most countries don’t have the luxury of hanging on a thoroughly outdated bit of political philosophy.
Ahh, yes, the onerous responsibility of not sharing our medical information with parties irresponsibly is the cause of expensive healthcare in the United States. Clearly.
Err, we've seen what happened when the Bad Guys (TM) won the election. They pack the Supreme Court with their friendly Bad Guys (TM) so that the Court can make decisions in their favor. (If you object, feel free to switch Good/Bad guys, and it will be still true.)
So "Please consider that supreme courts may also limit the power of the Bad Guys" is clearly false, because when the Team X has power, they will make sure Team X is in every branch of the government, and their justices will decide whatever the executive branch is doing is very kosher and constitutional, as long as it's their team.
In the end, the system can only hold as long as even "Bad Guys" are good enough that they're not willing to break the system from inside. You keep electing the Real Bad Guys, the system will fail. Checks and balances aren't magic.
Simply because you're not a fan of the outcomes doesn't mean that the appointments of justices Gorsuch, Kavanaugh and Barrett were illegitimate. Chevron deference started under the Stevens court and the deference it entailed related to the Reagan administration. That this has become a conservative hobby horse since then has nothing to do with policy preferences that only cut one way in a partisan way, and has everything to do with a deeper disagreement over the separation of powers and the role of the judiciary. Chevron deference isn't "the system" it's simply one precedent that has been faltering for years. There's no reason for any "side" to see this as the sky falling unless you really, really want to preserve some federal regulation that is TOO IMPORTANT to allow statutes to clarify.
>Simply because you're not a fan of the outcomes doesn't mean that the appointments of justices Gorsuch, Kavanaugh and Barrett were illegitimate.
I agree; just because I don't like their made-up and pre-determined justifications doesn't make their appointments illegitimate; that would be Mitch McConnell's blatant disregard for the timely execution of his responsibilities basically without recent precedent and certainly inconsistent between the times he did actually fulfill his duties.
One of Gorsuch or Barrett must be illegitimate if you want to be consistent.
Scalia should have been replaced by Obama, or Ginsburg shouldn't have been replaced by Trump. All of the arguments that the Republicans made about Scalia's replacement were equally applicable to Ginsburg's.
This will certainly make life harder for the regulatory agencies, and I don’t want to minimize the difficulty that represents, but this decision reinstates an important check on the Executive’s power at a very critical juncture in our nation’s history.
Some would also argue that the judiciary is not particularly well-functioning, so why are we acting like that's the best option in the absence of alternatives?
It’s not bad to have due process. If some unelected regulator decides to invent a new interpretation for a law, and this causes some form of damages to you, then the courts are absolutely the appropriate venue to seek your remedy. That’s what due process is. This just puts judicial oversight back into a process where it had (for rather poor reasons imo) previously been removed.
The court is partisan as all hell. If the side that wants to poison water and air to save money for industry wins, the court is going to high five it and laugh.
While that is a very important thing to consider when evaluating any law or judicial ruling in general, I don't think it shifts my view much in this case.
Foremost, this decision makes it easier to overturn regulations while making it harder to create them. This strictly moves the balance of power to the right regardless of who controls the presidency or congress at any moment.
Secondly, it moves power out of the executive and to the judicial, which currently leans right, and will likely continue to for decades.
Lastly, there were always limits as too how far of an interpretation they could push because it still has to be reasonable, and still has to follow many other rule-making processes we have. The left got lucky in that the Trump administration was particularly incompetent at following either of those, which we can't always depend on, but even without that it provided some bumpers.
> The Supreme Court on Friday curtailed the executive branch's ability to interpret laws it's charged with implementing, giving the judiciary more say in what federal agencies can do.
That is one way to view it. Another way is that legislation should be left to legislators.
Devastating that expertise will no longer influence the application of law and policy. The biggest question is who will interpret the application of law? Will it be challenged in court once again until a clear statement is made? Meanwhile, what will be the effects of this “deregulation” until a clear statement is made
The constitution mandates that the courts interpret the law. Thomas and Gorsuch are right in their concurrences, allowing the executive branch to both enforce and interpret law is abhorrent to our constitution's proscribed separation of powers.
Except Chevron was just codification of the status quo that had existed since the founding of the country.
Congress cannot be expected to craft every bit of law and regulation down to the finest detail, and the gridlock that has been congress over the past several decades should make it clear that it's practically impossible. The regulatory power of federal agencies has never been broad and without oversight from other branches - they operate on the authority given to them by Congress.
The executive branch has not just been creating agencies wholesale and giving them sweeping regulatory powers, congress has passed laws creating them and delegating authority to them.
As others have mentioned, you can look at the joke that is the patent system and the absurd games played around the law there to get an idea of what we're in for with this decision. I don't understand how anyone can think that's the place we want to get to for everything else.
No, we believe we should follow what the Constitution says even if it’s convenient. There’s virtually nothing that unites Federalist Society members (many of whom are Biden voters) apart from an engineers’ commitment to technical accuracy over practical effects.
Constitutional scholars since the founding of the nation have taken no issue with Congress delegating authority to federal agencies, and the initial Chevron decision followed along those lines.
Why is it only now, with the hyper-politicization of the SC, with interested parties spending significant money providing luxury and lavish accommodations to at least one member of the SC, that this previously accepted interpretation of the constitution is suddenly in question?
Chevron is about who interprets statutory law, agencies or courts. That question has been controversial for 100 years, ever since we have had administrative agencies. For example, the Supreme Court decided in 1944 that courts should give some respect to agency interpretations, but the court had the final say: https://en.wikipedia.org/wiki/Skidmore_v._Swift_%26_Co. Chevron didn’t create the deference concept until 40 years after that.
Chevron was always contentious, and applied by courts in a rather haphazard way. But overturning it wasn’t “political.” It was originally decided by five republicans and a Democrat (with three justices not participating) and was overturned by six republicans. What happened was an ideological shift in the Republican Party to separation of powers that’s been going on since the 1980s.
Law nerds have been talking about this for decades. The only thing "politicized" is how the media is using public ignorance of how the legal system works to attack the Supreme Court for an extremely academic legal issue.
Chevron was a unanimous 6-0 decision: there was no debate on its principles at the time.
Chevron said that it was not up to the courts to decide policy when there was ambiguity:
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
If there is ambiguity it is either on purpose (to allow flexibility) or by accident (unforeseen or change circumstances): it was thought that it is best for policy makers to deal with that ambiguity.
Remember: the agencies are headed by an Executive that is elected (President), and run my administrators (Secretaries, Directors) that are Senate-confirmed. There is connection to the will of The People throughout their operation.
I dispute this. It seems to me that if Congress was vague, it knew it was ceding power to the agency to decide; and that the court in Chevron considered it normal that the fallout from poor decisions should land upon those seeking legislative or executive re-election.
I can see both good and bad outcomes from today's decision (though I think in the short term it will multiply litigative and executive brinksmanship without elevating legislative standards), but I really don't agree with the idea that the justices who originally decided it were just clueless about the implications.
Citing a prior ruling that contains more precedence around the idea that federal agencies should have the right to interpret and enforce regulations is an interesting way to argue that it's a controversial topic. You cite a link that explicitly talks about deference and then claim that the concept didn't exist until 40 years later.
I'm also unsure how the political makeup of the court 80 years ago has anything to do with whether or not the court is more political now than ever, particularly in reference to something that actually is controversial - a justice and his family receiving significant compensation from politically motivated companies, including those that have a vested interest in decisions that he refuses to recuse himself from.
> Citing a prior ruling that contains more precedence around the idea that federal agencies should have the right to interpret and enforce regulations is an interesting way to argue that it's a controversial topic.
That's not what Skidmore said. It said that courts should defer to agency interpretations to the degree they are "persuasive." Which is almost a truism--obviously courts can defer to reasoning they find persuasive. Chevron went further, and required courts to defer to agency interpretations if they were "reasonable," even if the court would have interpreted the law differently.
> I'm also unsure how the political makeup of the court 80 years ago has anything to do with whether or not the court is more political now than ever
The Court is less political than ever. In the mid-20th century, the Court was at the peak of politicization, striking down democratically adopted laws based on "emanations from penumbras" of constitutional provisions.
Regarding Thomas, you sound like you're reading from some sort of talking points. Thomas was the OG constitutional purist. The notion that he's developed this views because he want on vacations with his personal friend is absurd.
I imagine both of us sound to the other like we're reading from a list of talking points. On your side, I see your replies as twisting things around to try and get to being right through some narrow definition - obviously Chevron further codified things - otherwise we'd just reference Skidmore and be done with it. But that doesn't change the fact that it was codifying existing practices, which is my entire point.
As for Thomas, I do not understand how any rational human being could make excuses for him (or Alito, to a smaller extent.) If you don't think it is a massive conflict of interest to be taking part in rulings related to the interests of Crow when he has received millions of dollars worth of perks, vacations, etc. from him, I don't know that we can have a serious conversation. How can anyone remain impartial when the interests of someone who has lavished them with the equivalent of many millions of dollars in gifts are in the balance? I'm also not stating that Thomas is newly compromised, so I'm not sure that his original positions mean much when I believe he's been compromised from the start. The difference is now that he and his compatriots are firmly in the driver's seat.
> I imagine both of us sound to the other like we're reading from a list of talking points.
I’m talking about an academic debate around Chevron that’s been around ever since I started law school, and was already robust for a couple of decades before that. This trying to connect it to Thomas’s vacations thing has come out overnight and seems out of a script.
> But that doesn't change the fact that it was codifying existing practices, which is my entire point.
That certainly not what I learned in my administrative law class! Skidmore says judges may defer to the agency if they find the agency’s interpretation persuasive. But the judge always retains the power to decide the meaning of the statute itself. Chevron changes that significantly. The agency interprets the statute, and the court can only disagree if that interpretation is unreasonable. And Chevron allows the meaning of the statute to change with each administration.
> As for Thomas, I do not understand how any rational human being could make excuses for him (or Alito, to a smaller extent.) If you don't think it is a massive conflict of interest to be taking part in rulings related to the interests of Crow when he has received millions of dollars worth of perks, vacations, etc. from him, I don't know that we can have a serious conversation.
You’re misreporting the facts, probably because you’re reading from talking points: https://www.forbes.com/sites/saradorn/2023/04/24/supreme-cou.... There was one 2004 case, involving a portfolio company of Crow’s firm, where Crow was not involved in the management. Critically: “Crow Holdings and Harlan Crow’s name do not appear on the 2004 court filings.” And the Supreme Court rejected the company’s certiorari petition.
The Supreme Court gets thousands of certiorari petitions every year. They identify conflicts based on the people who are named in the filings. (That’s how all judges do it.) The idea that he’s corrupt because he voted against hearing a certiorari petition—to the detriment of the company—in a case where Crowe’s name or his company’s name don’t appear, is ridiculous. It’s a deliberate effort to try and delegitimize the court through mudslinging.
> This trying to connect it to Thomas’s vacations thing has come out overnight and seems out of a script.
Overnight? This has been brewing for years - we continue to receive more and more information, but it's hardly anything new.
> That certainly not what I learned in my administrative law class! Skidmore says judges may defer to the agency if they find the agency’s interpretation persuasive. But the judge always retains the power to decide the meaning of the statute itself. Chevron changes that significantly. The agency interprets the statute, and the court can only disagree if that interpretation is unreasonable. And Chevron allows the meaning of the statute to change with each administration.
I'm not sure if I'm being strawmanned here or we're just talking past each other.
My point is that federal agencies had been taking regulatory action before both Skidmore and Chevron. Do you disagree with this statement? If so, how do you suppose that these cases even got to the Supreme Court? I am not arguing that Skidmore and Chevron did not further codify the procedures, but that the status quo was Congress being able to create federal agencies with regulatory authority, and that the explicit reversal of Chevron is a significant neutering of the ability for both the legislative and executive branch to do that.
> Critically: “Crow Holdings and Harlan Crow’s name do not appear on the 2004 court filings.” And the Supreme Court rejected the company’s certiorari petition.
Crow spends significant portions of his fortune on political lobbying. He clearly has interests that the Supreme Court weighs in on that do not involve him or his companies directly as a plaintiff or defendant. I think it is ludicrous that any justice would feel it is acceptable to receive millions of dollars in benefits from someone who is so active in the political arena, and I would say the same if it came to light that liberal justices had done so. How you think it isn't a conflict of interest is beyond me. I know I have biases on, say, gun control, due to having several friends that are extremely pro-gun, and the most they buy for me is drinks on my birthday. It beggars belief that you honestly think Thomas would not be influenced in his decisions by his "personal friend's" largesse.
> But overturning it wasn’t “political.” It was originally decided by five republicans and a Democrat (with three justices not participating) and was overturned by six republicans. What happened was an ideological shift in the Republican Party
Your conclusion doesn't match your argument. The original decision was voted in along party lines, the party ideology changed, and now it's been overturned again along party lines. How is that not political?
Erm... I think there will be problems as a result of this, but your comment is wildly bad on a number of levels.
#1 - Chevron deference as a rule comes out of Chevron, and the idea that Chevron just encoded something that was already always done is ahistorical. Both before Chevron and going forward, courts will still often defer to agency interpretation when that makes sense. They just won't be compelled to look at it so uncritically.
#2 - The idea that Chevron has been uncontroversial until now is totally detached from reality, and is a dead giveaway that you really don't know much about this.
#1 - Prior to Chevron, did Congress delegate authority to federal agencies to impose regulations? The answer is yes. Prior to Skidmore, did Congress delegate authority to federal agencies to impose regulations? The answer is yes.
The fact that Chevron codified things in a more structured way does not change the fact that it was a ruling about an existing practice. How are you arguing otherwise? Both rulings were about things that were already happening. Neither Skidmore or Chevron resulted in the brand new practice of federal agencies having regulatory power.
#2 - Of course there is always dissent around laws and decisions. Obviously, however, the majority of the past century has had further support for federal agencies having regulatory power. It is only the past half decade where there has been significant pushback. People are sitting here complaining about how for so long the SC increased their deference to Chevron - how would that be the case if it was controversial within the court? Weird that we had more than 70 years of the courts just strengthening their position on this if it was so controversial the whole time, rather than something that has been a significant change over the past half decade.
That is a false equivalency. The Constitution is an explicit definition of what the federal government is and what they are allowed to do. The Bible is a collection of a bunch of ancient stories.
Your quote reminded me of people with strong character: admitting to a mistake when it might cost them their job, urging a friend to return a stolen item, asking fellow church members to get to know a paralyzed man.
Putting aside personal convenience is fundamental to loving God and neighbor at times.
I'll just point out that loving God and neighbor is a paraphrase of a specific quote from the Bible. That's why I mentioned it. The quote is "Love the Lord your God with all your heart and with all your soul and with all your mind and with all your strength. The second is this: love your neighbor as yourself. There is no commandment greater than these.”
I mean, I’ve never been able to wrap my head around people who are Christian (or whatever) and pick and choose which of the religions “rules” to follow.
I realize to not do so in general makes society a pretty awful place, but most religions say you’ll go to hell if you don’t.
It’s the Supreme Court’s job to explicitly follow the constitution. In your example I want them to be religious fundamentalists. If that turns out to be an issue we have a body that can change our society’s “bible.”
"Federalist Society" and "commitment to technical accuracy" are diametrically opposed concepts. You are right about them not caring about the practical effects of their actions.
1) Courts should interpret statutes, not executive branch agencies
2) The separation of powers that the founders went to a lot of trouble to implement in the constitution must be respected
3) Judges can't gin up new "rights" from "emanations from penumbras" in the Constitution.
These are not "far right" positions--they are obviously correct. They're the version of government you learned in 8th grade. If they weren't inconvenient for your preferred policy preferences, you would think that too.
This is not a particularly fair representation of the general state of the Federalist society's goals (I don't even think it's a particularly good representation of FedSoc's position on this case, but it certainly isn't a good representation of FedSoc's position on e.g. religious freedom).
> Courts should interpret statutes, not executive branch agencies
This is, of course, impossible. If a statute creates a federal agency, the agency must, definitionally, interpret the statute. The agency cannot simply wait for a court to rule on its legitimacy to exist, much less its ability to take particular actions. This doesn't mean that executive overreach shouldn't be curtailed by the judiciary, but using a standard that good-faith, "reasonable" executive interpretations of a statute are valid is a fine standard.
> Judges can't gin up new "rights" from "emanations from penumbras" in the Constitution.
The 9th amendment (and federalist #84) would have some things to say about this.
> The separation of powers that the founders went to a lot of trouble to implement in the constitution must be respected
This is pretty dubious, there's a clear history and tradition, going back to before the founding, of debate on the level of federation and separation of powers, and the shape of the branches' and federal vs. state powers wasn't clearly established until at least 50+ years after the founding (Marbury v. Madison and to an extent Worcester v. Georgia).
> > Judges can't gin up new "rights" from "emanations from penumbras" in the Constitution.
> The 9th amendment (and federalist #84) would have some things to say about this.
Funny how the 9th amendment was meant to be a bulwark against textualism, isn't it? Much like the "well-regulated militia," this original text of the constitution is ignored in favor of latter-day ideology.
The idea that FedSoc is even particularly coherent in its members views is blowing my mind. I dislike plenty of recent actions by the org, but FedSoc has always been a very broad organization -- not even a "coalition" on much of anything. When I was in law school you could find people representing 2/3 of the entire political compass in its speaker directory. Maybe that's shifted a bit since Trump, but without digging I can even think of a handful of FedSoc-aligned people opposed to overturning Chevron.
> There’s virtually nothing that unites Federalist Society members (many of whom are Biden voters) apart from an engineers’ commitment to technical accuracy over practical effects.
In what fantasy universe do Federalist Society members vote for Biden? They have been backing conservative and libertarians for generations. Their members are part of the Supreme Court and clearly do not want a democracy anymore. They are the antithesis of liberal political positions. I call utter bullshit.
How do their views even remotely line up with Biden voters?
There’s tons of Biden voters in federalist society because it’s not like Trump is much of a rule follower. And Biden himself for most of his career was a conservative Democrat.
But I’m flummoxed by something. What does “democracy” mean to liberals? You’re the ones who want courts to decide issues that most other advanced democracies leave to voters, right? You believe in unelected bureaucrats and experts governing the country instead of elected officials. You seem to be using “democracy” in a very odd way to refer to rule by educated elites.
The Senate allocates equal representation per state regardless of population size. Our elections actually just vote electors who then vote in an electoral college to vote the Executive.
The US system isn't a pure democracy, it's never been. Given that, it's a largely political matter which institutions you feel should be more democratic than others. Article III comes after Articles I and II and many believe this is the order of importance that branches are given in government. Really where we differ is our politics, this is not a debate on obvious constitutional interpretation.
And of course a Congress bought and paid for by lobbyists will actually represent voters, right? The US is a broken country in decline and actively working towards its own destruction
> There’s tons of Biden voters in federalist society because it’s not like Trump is much of a rule follower.
This assumes that the Federalist Society cares about rule followers. It is after all the folks that gave Trump the short list of names with Gorsuch and Kavanaugh, after McConnell refused to give Garland even a hearing.
What was the position of the Federalist Society on Garland's situation? Especially since Barrett was appointed just before an election.
What is your position as to why Garland was not even given the time of day but Barrett was?
EDIT: I anticipated some downvoting, but honestly how many FedSoc members are planning to vote for Trump? I can't think of any (and I'm a lawyer, so know more than a few).
Yeah, you’d have to be pretty ignorant to think that the president who had admitted the most federalist society members to the Supreme Court won’t be getting any votes from members of the organization that he so empowered. Like beyond the pale levels of ignorance.
The whole point of the judgement is that the status quo continues.
Congress passes laws, the agencies implement them, if you disagree you go to court. All it's saying is that you don't have to go to the Supremes to get your disagreement to win.
Imagine a patent system where the judge could never throw out a patent, because the experts at the agency (patent office) had granted it, so it must be valid.
This effectively neuters the ability for federal agencies to create regulations within the specific areas that Congress has tasked them with regulating. This is a significant blow to both legislative and executive branches, and further entrenches the power in the judiciary.
In both reality and your supposed system, someone could always go to appointed officials and get their patent enforced - just look at how the Eastern District of Texas operated for decades. In reality, we see far more frequent turnover and shifting of opinion in federal agencies than we do in the judiciary. Just look at how often Net Neutrality has flopped back and forth at the FCC. (Constant reversal of regulatory decisions is also an issue, but it goes to show that the idea that a patent system that exists outside of judiciary control wouldn't have plenty of opportunity to make your case to sympathetic ears is silly)
This does not neuter federal agencies. They can still make rules, and they still have deference on fact questions. The only difference is that on questions of law, they no longer have deference.
philosophically I see what you're saying, but will congress be good at passing small laws to amend the ever changing regulatory landscape? I'm going to guess no. So practically this could be a nightmare
> Except Chevron was just codification of the status quo that had existed since the founding of the country.
The concept of administrative law did not even exist at the founding of the country -- executive-branch agencies making rules directly applicable to the public wasn't really a thing until about the turn of the 20th century.
Further precedents from the 1920s and 1930s (and more recent) are listed in the above link. It's not a new idea that some ambiguities are left to the Executive to figure out.
In addition to funding renewals, congress can make specific tweaks at any time to correct anything they dislike with regard to the executive branch. The ruling pretends like this avenue hasn’t existed and been used the entire time.
> I think we will have to wait and see what happens.
What will happen is that anytime someone doesn't like a regulation, they'll now have many, many jurisdictions in which to shop for a judge that will rule in their favor.
It's not about the application of law. It's about the ambiguity of law. If anything, they'll need to rely on more expertise now, so they can craft laws that aren't open to interpretation. This is a fantastic decision on the part of the court.
> It's about the ambiguity of law. If anything, they'll need to rely on more expertise now, so they can craft laws that aren't open to interpretation.
I doubt that granting Congress more power will inspire them to be less political, more responsible, and more governed by facts. Particularly when the party that made this decision has veered completely in the opposite direction.
If anything, it will be used to prioritize "faith" over fact, like what we've seen in Oklahoma and Mississippi.
They can still delegate. They just need to be more specific in what powers they are delegating and to whom. The people they delegate to cannot give themselves more power than they were originally given.
> I doubt that granting Congress more power will inspire them to be less political,
I'm not sure I can wrap my head around the expectation that a political institution should be 'less political' -- can you explain what you are getting at here?
> more governed by facts.
Fact substantiate 'is', but politics is about 'ought', and particularly, reconciling the contradictory 'ought's that prevail in varying quarters of society. Expecting politics to be 'governed by facts' requires taking a single set of values and interests for granted, which effectively means codifying one faction's ambitions into law at the expense of everyone else.
If that party can win elections by doing that, that’s what should happen. “Expertise” carries zero weight in a democracy other than its ability to persuade voters.
> Expertise carries zero weight in a democracy other than it's ability to persuade voters.
Would you rather the "holistic healer" who says only drinking green juice for a week to "detox" your kidneys make laws? Or the person who actually went to med school for 12 years.
This is just throwing out the baby with the bath water. You really think the proportion of "frauds" is the same among doctors and among holistic healers?
> If that party can win elections by doing that, that’s what should happen. “Expertise” carries zero weight in a democracy other than its ability to persuade voters.
That's a pretty idealized view: The vast majority of voters just want competent governance, with guard rails to make sure the governors don't go too far, because they (the voters) have lives to live and other things on their minds.
As to persuading voters, we should remember the joke about Islamist parties' agitation for "democracy": One man, one vote — once.
Or... just hear me out... we could hire experts in various fields, give them general principles to follow, let them work out the details, give them the authority to enforce it, and maintain the right to step in if they overreach.
But yeah, "opinions are greater than facts" is technically a very democratic way to do things.
As an aside, I've always wondered how society will drive the response to climate change into a ditch - it'll be at the hands of lawyers (because, you know, they are policy experts).
The EPA can make the most reasonable rule possible, based on available facts, expertise, and public consultation, and have it overturned by a handful of judicial partisans on behalf of people willing to throw money at litigation. I think we'll see a huge increase in forum shopping and demands for injunctive relief designed to grind any kind of regulatory action on any topic to a halt. In many cases litigants will bring cases without any expectation or intention of succeeding on the merits, but rather with the sole goal of tying things up in court for the duration of an electoral cycle.
From the mouth of John Roberts himself: "courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority." This is not going to end well.
>If anything, they'll need to rely on more expertise now, so they can craft laws that aren't open to interpretation.
Every law is open to interpretation. If tech can barely secure the doors on machines that execute instructions near-flawlessly, you think we can construct flawless frameworks out of inherently ambiguous linguistic building blocks run and understood by deeply human executors? This just plain doesn't work when the rubber meets the road.
Someone's going to make a choice, and SCOTUS just decided unilaterally that it's going to be a body that hasn't been able to decide anything productively for a decade.
This isn't about creating better structures for the analysis of rules; it's about gutting the regulatory capacity of agencies.
>so they can craft laws that aren't open to interpretation.
In what world is this even humanly possible? Is this something conservatives actually believe can happen? If so, then they're irrational almost beyond repair.
Of course expertise will still influence the application of law and policy. The same people will still write the regulations, serve as expert witnesses in trials, and write amicus briefs. The thing that has changed is that the executive branch's preferred interpretation of laws passed by the legislative branch will no longer be granted deference by the judicial branch. They will be on a level playing field with other parties when it comes to putting forth proposed interpretations of laws.
The executive is supposed to represent the public interest, opposed to the interests wealthy enough to bring a lawsuit. We seem to have given up on that.
Aren't all of the branches of government supposed to represent the public interest? What makes the executive uniquely qualified to do so? I would think that there are few people who would say that the past two administrations have both represented the public interest. People tend to think that their favored administration was serving the public interest, and the disfavored one was tearing down the progress of his predecessor.
This assumes the court can even hear cases in a reasonable amount of time.
An overloaded court system means that defendants are put at a disadvantage and can likely be strong-armed into an agreement that is unfavorable. At least with agencies, companies knew where they stood, after all, most companies probably have a few former agents on staff.
Now it's, better hope you don't lose an injunction and you get a judge capable of understanding the technical reasons why your company should be allowed to operate in that capacity.
I don't think this is the pro-business win that conservatives claim it is. It just changes the rule of the game in ways that I think favor the government. If an agency gets an injunction, then continues to press for continuance based on the fact that they don't have the resources right now, and a judge buys it, then the company end up in judicial purgatory.
>This assumes the court can even hear cases in a reasonable amount of time.
If it's a bandwidth issue, reducing the number of extra-judicial bureaucrats and upping the number of judiciary is pretty straightforward. Seems like a pretty simple rebalancing issue.
>Now it's, better hope you don't lose an injunction and you get a judge capable of understanding the technical reasons
Why would experts (like those that were informing executive agencies on their payroll) not be called here?
The judiciary depends on Congress for its funding, and is perennially underfunded. Arguably this suits the legislative branch because a clogged judicial pipeline encourages people to pursue legislative relief.
Untrue. The way it will work now is that judges will focus on their expertise—interpreting what the laws mean. And agency experts will focus on their expertise—applying that law to specific factual scenarios.
> judges will focus on their expertise—interpreting what the laws mean. And agency experts will focus on their expertise—applying that law to specific factual scenarios.
It's not always that simple: Sometimes, trying to interpret "the law" in the abstract, without deep knowledge of the factual context, is like being a bull in a china shop.
The conservative justices' various obsessions with textualism, originalism, and whatever other flavor of the month comes up, are often unrealistic. Ditching Chevron deference, in the teeth of decades of precedent and congressional approval, is one of those situations.
Granted, your 3d Cir. clerking experience, seeing that aspect of how the sausage is made, does give your view a certain weight. But too many judges need to start remembering that they're hired help, bureaucrats, and when Congress says "we want the agencies we create to figure out what to do, subject to political checks," it's manifestly not on federal judges to say "oh no, you can only do that in a way that lets us judges have the dominant seat at the table."
Judges are Article III, and the need for them laid out explicitly in the text of the Constitution itself.
Chevron deference, and the corpus of administrative law unsubject to judicial review it spawned, most decidedly is not.
That makes judges a bit more of a fixture in the grand scheme of things than all these "agencies" running their own pseudo-courts so that Congress critters can spend their tenure voting one another pay raises, and insider trading among themselves.
>it's manifestly not on federal judges to say "oh no, you can only do that in a way that lets us judges have the dominant seat at the table."
Actually, it manifestly is on the judiciary to say that. If Congress started adding clauses to legislation to the tune of "this law is not subject to judicial review", the judiciary is fully within it's rights as outlined by the Constitution to strike down the law, as the Legislature, by definition, cannot produce a thing with force of law contradicting a limitation placed on it by the Constitution short of another Constitutional Amendment + the requisite ratifications. An unconstitutional law, is no law at all. The issue of constitutionality is purely the realm of the judiciary. No one else. You can change what the Judiciary looks like; but you can't structurally usurp it's powers under the Constitution.
There is a reason Jefferson and Madison were really nervous about how the judiciary ended up playing out in practice though.
> If Congress started adding clauses to legislation to the tune of "this law is not subject to judicial review", the judiciary is fully within it's [sic] rights as outlined by the Constitution to strike down the law
I'm not suggesting that Congress go that far. But don't forget the Exceptions and Regulations Clause in Article III: "In all the other Cases before mentioned [i.e., establishing various grounds of federal-court jurisdiction], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
That sounds pretty plenary to me. And Congress has sometimes exercised that power, e.g.:
* Severely limiting and even foreclosing judicial review of certain types of decision by immigration authorities: 8 U.S.C. § 1252(g)
* Ditto for decisions about Social Security: 42 U.S.C. § 405(h)
My vague recollection from law school is that SCOTUS has said that this is OK as long as Congress provides sufficient due process via other means.
> The issue of constitutionality is purely the realm of the judiciary. No one else.
It's astonishing how such an exalted view of the judge's role has taken root and spread like kudzu from its origins in John Marshall's brazenly-bootstrapped argument in Marbury v. Madison (and the All-Writs Act).
I'm not quite following here -- how does stopping executive-branch employees from stepping far outside of their technical expertise into the world of statutory interpretation and constitutional law stop them from continuing to conduct their duties prescribed by law, as explained by the judiciary?
They absolutely can apply the law to specific factual scenarios. They just can't necessarily apply new legal theories to new factual scenarios without getting challenged. The words "apply the law" generally do not mean "invent new legal theories."
Technically they still can do that but they can now be overridden by any judge for any reason. This is an obscene power-grab by our most corrupt and least accountable branch of government.
Show me a greater fundamental misunderstanding of the constitution, which is not an enumerated list of rights, but an enumerated list limiting what the gov't can do. Why is that I only see you post the most specious legal arguments, rayiner? Why is it consistently the case that you misrepresent the basic principles of the US government in the service of facially decrepit arguments?
> Show me a greater fundamental misunderstanding of the constitution, which is not an enumerated list of rights, but an enumerated list limiting what the gov't can do.
You're confusing the federal government with the state governments. State governments are not limited to enumerated powers and can do anything they want.
To overturn a duly-enacted state law, you need to assert a federal constitutional right. You're correct that the constitution "is not an enumerated list of rights." But that means it's also not a source of rights! The rights must come from somewhere else.
That's why the "emanations from penumbras" reasoning is invalid. It treats the Constitution as a source of new rights that can't be found somewhere else.
> Why is that I only see you post the most specious legal arguments, rayiner?
I think most people on here get their legal analysis from political science majors on MSNBC and WaPo.
Where in the First Amendment does it say separation of church and state?
The Ninth Amendment is a savings clause. It says that the Constitution isn't meant to be an exhaustive list of rights. I.e., a right that can be identified somewhere else still exists, even if it's not mentioned in the constitution.
But by the same token, the constitution isn't a source of rights. You can't point to it for some right that isn't already pre-existing.
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> Devastating that expertise will no longer influence the application of law and policy.
You've got it exactly backwards. The relevant expertise in interpreting law and policy resides with the judiciary. Allowing administrative officials with no background in constitutional law or statutory interpretation to decide for themselves what the law they operate under means has lead to devastating power imbalances and opened the door to wide-ranging corruption and overstepping of authority.
Judges are also unelected bureaucrats, and they are less subject to democratic oversight since they have lifetime appointments vs agency heads who are appointed by the executive branch and can be effectively "voted out" if voters choose a different president who replaces them.
When dealing with a country of over 300 million people and a near $30 trillion economy Congress cannot possibly specify things so completely that there won't be things that need interpretation.
How did it work before the Chevron defense? The USA didn't implode before 1984.
Congress would need to outline the limits of the executive function in the law. It would need to detail what the goals are (and are not).
To me this seems like a vast improvement rather than just passing a bill "regulate pollution" and then whatever the EPA decides is now law impervious to court challenges.
Congress passed laws that required interpretation to actually implement. If someone disagreed with the agency interpretation they went to court. The court would then figure out an interpretation.
All Chevron deference did is tell the court that if the agency interpretation was reasonable the court should go with that.
With or without Chevron, "unelected bureaucrats" end up interpreting the law.
> With or without Chevron, "unelected bureaucrats" end up interpreting the law.
You really feel like there is no difference between a judge, schooled in the law and some GS-10 government employee?
Really? In deciding whether or not the government is following a law passed by Congress? You know, acting as a judicial expert? The "exact same unelected bureaucrats"?
Let me give you a real life example (from the people who brought the case to the Supreme Court) - the Dept of Fisheries decided that some fisherman required an observer to be on the boat when they fished (to make sure they followed regulations) and that they had to pay for it.
That was never a part of the law, only a decision by a bureaucrat. It couldn't even be challenged in court due to Chevron.
You feel that is a better situation than Americans saying "wait a second, why am I paying for this? that's not even in the law" and bringing the decision to a court of law?
You feel like taking away that power from Americans is a good thing?
>Devastating that expertise will no longer influence the application of law and policy
Not true.
Congress is free to continue to delegate to experts when it comes to writing laws and policy. What they are no longer free to do is write vague laws and policy and expect the judicial branch to inject their own favor when interpreting that vagueness. The judicial branch will once again do what it should have been doing all along: simply interpret the law.
Basically, Congress actually has to do its job and write better laws. And again, they are free to consult experts when writing these laws.
The judicial branch is actually once again functioning the way it was intended. It is restoring balance to the "checks and balances".
> and expect the judicial branch to inject their own favor when interpreting that vagueness. The judicial branch will once again do what it should have been doing all along: simply interpret the law.
No, with Chevron deference, they expected the executive branch agencies to interpret unspecified parts of certain laws, because they were the ones supposed to implement them, e.g., the definition of "source of air pollution" in the Clean Air Act of 1963. The judicial branch actually is "injecting its own behavior" in that this means they will interpret more laws than they otherwise would have.
That's pretty generous to claim that expertise is what was influencing application of law and policy before this. Agency oversight got us Ajit Pai deciding to kill net neutrality.
After which none of the doomsday scenarios people shrieked about had occurred. ISPs aren’t selling bundles that exclude certain websites, nor do cable providers privilege their streaming video traffic over Netflix.
But whose expertise. The problem is that with every change in the administration, The rules change because there are new experts that interpret the rules in a different way. Chevron deference led to instability of understanding what the law was.
Perhaps this will cause us to start electing experts instead of lifelong politicians? The number of doctors, engineers, and scientists in Congress is pathetic.
Devil's advocate: isn't a lifelong politician an expert in politics? Isn't it the case that with so many noobs in Congress nothing is getting done because they simply don't know how to politic to get things done? All they know how to do is run to the nearest TV camera and start slandering everybody they don't like. Then they wonder why they can't broker deals to get what they want.
Besides, very few doctors, engineers, and scientists want to have anything to do with politics. They generally abhor the practice of politics and generally don't see it as a skill they need to develop. Without that skill, they'll be just as ineffective as the Congress we have today.
I think one could make an argument that the US system of governance was designed to encourage "politicking" by populist types in the House. Love him or hate him, LBJ was excellent at this sort of thing and an ideal representative. But I've read a lot of Caro and it seems he feels the US Senate has jumped the shark in this regard. The narrative laments the glory days of high-minded debate and the occasional cane beatings, but it's hard to say if that's Caro's actual view.
But it's fair to argue the Senate wasn't built for politicking, yet that's what it's devolved into. I'm a political layman, but perhaps popular vote of senators is a terrible idea as it discourages people unwilling to play hardball to get involved... these engineers, doctors, scientists, etc. It takes a special kind of thick skin to be in national office and those type of people don't seem to gravitate to science-based fields, but rather law and professional politics.
I agree on both counts. The House was, by definition, the populist component of the government. That was the only representation that We The People got. The state legislature was supposed to elect the state senators, and the state legislature was to nominate an even smaller group of electorates to choose the president.
But the fact the state legislature elected the state senators reflects your point that the senate was intended to be more "serious."
It's a beautiful system, and it's interesting to think about how things would be different if the 17th Amendment never came about. But this ruling could bring the role of Congress in governance to the forefront again.
Well, this Congress isn't up to doing its job. All they know how to do is act like Middle Schoolers and run their mouths in front of TV cameras. They have no idea, or experience, with governance.
I don't think it is the inexperience level in congress that is the driving factor. Ted Cruz has been in the Senate since 2013, and he is absolutely one of the problematic members. Former President Trump is similarly anti-compromise and similarly a bomb-thrower rather than a politicker.
The main problem as I see it is that to many people have entered their own little political bubbles (a problem on both the major parties), and that on one side it has become common to lie outrageously (election denial, "Biden Crime Family", etc...) and to baselessly vilify their opponents in unfair and repugnant ways ("groomers", "killing babies after birth", etc...).
There is a real historical parallel to this: the U.S. Civil War. In the run-up to the election of Abraham Lincoln the Southern Democrats absolutely vilified him, saying things like he was going to free the black slaves (not his plans at all at that point) and make slaves of poor white folks. Many of these species were made on the floors of the House and Senate to be picked up in the newspapers in their home districts.
When Lincoln won (largely because the Southern Democrats split their vote), this rhetoric had taken on a life of its own and the populace was so enraged that it would have taken real leadership in the south to prevent war. And so we went to war with ourselves.
And about what really? Certainly slavery was the over-arching issue, but what specifically about it? Lincoln won on a platform of status-quo. There was to be no effort at freeing slaves (there were 4 slave-owning states in the Union, and slavery happened in a number of new territories like California during the war), and the only anti-slavery thing Lincoln committed to was to no expand slavery into the new territories: something that had already been agreed to.
The U.S. Civil War started because a failed political strategy to lie to their own voters got away from the Southern Democrats.
I am truly scared that we are approaching that today. There is no-one with any integrity left in Republican leadership. Their voters have been lied to so much and so long that the idea that the leaders of the Democratic Party both are tying to "groom" children and to literally suck their blood in some ritual to live longer are nearly main-stream within Republican circles. And Republican leadership is alright with that, so long as they think it will get them elected.
I keep telling people. Make stochastic democracy happen, where every 4 years randomly selected individuals populate the house to have a simple yay/nay vote on senate generated items ( senate can stay as is ). I used to joke about it, but I no longer think I am.
The main problem with that approach is it makes rigging the 'elections' trivial when probabilistically every result is equally as plausible as another.
The idea of selecting legislators in a similar manner to jury service is how democracy originally used to be done, and it has a lot going for it in my view.
I'd suggest shrinking the pool somewhat, perhaps by selecting from people involved in state-level politics already? This idea that any random person is fit to be a representative is bonkers to me.
The House should be filled with the Common Man, if you will, but I'm certain the authors were envisioning a parvenu bootstrapper like Ben Franklin or a Paul Revere.
But the Senate should change too--repeal the 17th amendment and bring the election of US Senators back to the state legislative bodies. It's a key element that made us a Republic and I'm failing to see how we can even refer to ourselves as such since 1913. I find it grating when people say "our democracy" because it is true now, but shouldn't be.
The purpose of Congress is to make these kinds of decisions. They pass the buck so they don't have a voting record that an election opponent can use against them.
This decision has more to do with the Court owning its own past mistake, where they deferred to executive agencies. But both the judiciary and the legislative enabled the executive to consolidate lawmaking and interpretive power, thus violating the separation (and balance) of powers. Overruling Chevron is a step in the direction of restoring the balance of power. The balance may never be perfect, but at least we can see when we're far off course and make a correction.
FINALLY. Chevron is the bedrock of bureaucracy, and it provides a layer of opacity. It's fundamentally anti-democratic and anti-republic--note the lack of capitalization.
This court continues to make decisions that might be defensible if you were making them for the first time, but go against decades of precedent in which time many laws have been written on the assumption that things would work a certain way. For a group that claims to be holding to tradition they sure are willing to throw things into chaos.
Sometimes bad precedents need to be overturned when decades of evidence have accumulated that it was a mistake, and this is one 100% of people should be happy about.
There have been other poorly decided precedents in the past that were later overturned, for example:
The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation. If this was really bad then you should take it up with the legislature to change the laws.
This goes into a core misunderstanding I think a lot of Americans have, that we have three co-equal branches of government. That was not the intention, the Legislature is supposed to be the most powerful, creating laws and with the authority to impeach the other two branches, who have no way of removing legislatures. Over time the other two branches have been accumulating power that should belong to the legislature, and I see this as yet another example.
> The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation.
That gets to the deeper problem..
If you have one group that is in charge of creating the rules, interpreting the rules, and enforcing the rules, you can't trust the process is independent and there's equal treatment.
If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.
Legislatures delegating their authority diminishes their office, blurs lines of authority, and lets them abdicate responsibility.
> If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.
The way our system is set up, they generally don't have time to do a good job under a), and leaving things alone under b) would clear the field for polluters, fraudsters, etc.
Someone upthread said that Chevron deference is a useful hack; that's absolutely right. Sure, there's technical debt there, but the power structure and individual incentives for legislators have made the hack a useful way to keep the system running.
> the power structure and individual incentives for legislators have made the hack a useful way to keep the system running
And abdicate responsibility from people we can hold accountable via elections to anonymous bureaucrats that may be knowledgable in their fields but we'd never know it.
If it's important, Congress should be willing to write it into law (or amend the Constitution?) instead of depending on a 40 year old hot fix.
> Congress should be willing to write it into law (or amend the Constitution?)
That'd be the preferred solution, but given the existing incentives, it's almost certainly not going to happen.
It's a version of the installed-base problem: The existing House members and senators got where they are through the existing system, and it's not at all in their personal interests to make major changes.
It's also akin to the software rule that scrapping a running system and rewriting it "the right way!" is dangerous, because the running system (hacks and all) encodes a lot of hard-won knowledge about edge- and corner cases, bottlenecks, etc. In politics, it's especially true, because we have so many different players — with often-conflicting interests — who have very different ideas of what "the right way" would be. "Refactoring" is the best we can realistically hope for.
> If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.
That's why we have Congressional hearings, etc. It's not like the legislature makes laws in a locked room, consulting nothing but their own minds.
>If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.
Or c) set aside budget to fund their own infra and pool of expertise to enable members of the Branch to conduct legislative business competently, and most importantly, independently, of the other two branches, like was the original intent behind the Library of Congress.
>If you have one group that is in charge of creating the rules, interpreting the rules, and enforcing the rules, you can't trust the process is independent and there's equal treatment.
You don't have to trust them. You can sue them for not going through a rulemaking process that includes publishing proposed rules and reviewing public comment, or for a rule that "was arbitrary, capricious, or an abuse of discretion."
That happens a lot. The first two (was it three?) travel bans during the Trump term were struck down this way.
>Legislatures delegating their authority diminishes their office, blurs lines of authority, and lets them abdicate responsibility.
Then they should be replaced at the ballot box with legislators who will reclaim the duty to author the rules. Why is the Supreme Court the entity to force this change and ignore the intent of Congress?
> You can sue them for not going through a rulemaking process that includes publishing proposed rules and reviewing public comment, or for a rule that "was arbitrary, capricious, or an abuse of discretion."
Or you can remember that the Executive Branch's job is to enforce the laws, not write them.
This. I do not think it is appropriate for legislators to delegate as broadly as they have. The default should be for them to not pass laws, if they don’t have time to understand the issues. Instead, they are basically creating new legislative branches under the executive branch.
It is much worse than just creating a legislative branch under the executive. Executive agencies are judge, jury, and executioner when it comes to their rules. They have their own enforcement teams, courts, and make up their own penalties for violating the rules they made up. They are like a government inside the Constitutional government.
The government is required to give everybody a speedy trial with a jury of their peers. Fines are also required to not be excessive. Violate an executive agency rule and you will not get what is required by the Constitution.
> The default should be for them to not pass laws, if they don’t have time to understand the issues.
That’s insanity. Why wait when you can have a regulatory body dedicated to understanding and regulating based on those understanding. If they fuck up , the delegating power has the ability to rein it in.
>If they fuck up , the delegating power has the ability to rein it in.
We synonimize "an Act of Congress" with something long, drawn out, and ardorous for a reason. With that ability to rein in locked behind gaining the buy in of the rest of the Congress, it leaves an Executive Agency able to play "scope chicken" with the Congress.
Making law is Congress's job. Id a rule needs making, the Legislature should have in place the framework to handle the act of rulemaking; but importantly, seperately from the enforcement mechanism. The Judiciary should equivalently accommodate a venue for redress of grievance w.r.t interpretations in play.
Failure to do the above without the seperation of power is a failure to govern.
Then they can consult with experts, put it in a bill, and vote on it, instead of leaving it up to later extra-legislative discretion from political appointees with questionable expertise.
It sounds like you're referring to Locke's view on separation of power? He did hold legislative power supreme over the others like you say, but also noted that legislative power derives its authority from the people (consent of the governed), who have the right to make and unmake the legislature.
> And when the people have said we will submit to rules, and be governed by laws made by such men... nobody else can say other men shall make laws for them; nor can the people be bound by any laws but as such as are enacted by those whom they have chosen, and authorized to make laws for them.
Representation is now extremely poor in the United States. Colonial Americans enjoyed better representation on paper (though virtual) than the average American does today. People have better representation in Commie China. We're an extreme outlier among OECD countries, with over 700k constituents per rep. Compare Nordic countries, with more like 40k per rep, closer to the U.S. in the late 1700s and early 1800s. The only act of Congress I advocate for is repealing the "Permanent" Apportionment Act of 1929.
That doesn’t solve the problem; how do you decide the ambiguity in the meantime? (Concretely, some court is evaluating a dispute. Does the EPA have the right to decree X, or not?)
In the U.S., the federal government only has powers that have been explicitly allocated by the sovereign (the People). The executive, under the guise of any three letters, can't "decree" shit beyond EOs. The President has enforcement and federative powers, not legislative.
This is a mere magick trick that can only ultimately be enforced by private firearms.
You do not hold allodial title to the things which you need to live. You can be involuntarily caged for long periods for mere possession of materials or objects. You are a subject, not a sovereign. Try protecting yourself from kidnap by an enforcer next time he catches you with a joint, you will be swiftly escalated to execution if you successfully fight off application of chains. You are not sovereign if your choices are death or obedience (even to the god/religion "The Law").
Our system kills sovereigns systematically and convinces its subjects they're sovereign (they're not) in order to lessen the odds said subjects learn from the state and get violent against its enforcers. Democracy did not help us: it helps the ruling elite by playing a magick trick on you, convincing you to give up violent power and accept the unacceptable because "We have rules and a system, and you agreed to those rules so tough nuts! You've got a chance for change next election cycle."
Its original intent was noble, but seriously try BSing me that we have any effect after the comedic horror show last night...
From my perspective it's because the constitution outlines law making as a power given to the legislative branch. To give regulatory agencies the ability to effectively create law by reinterpretation is clearly bad. But to let the courts give broad deference to the executive branch agencies, when challenged on it, is a clear violation of the separation of powers. Beyond that, it is just wrong, in my opinion, for unelected bureaucrats with vested personal interests in these issues to get deference over the people they serve.
That is a feature, not a bug. Supreme Court decisions are informed by precedent, not bound by precedent. If that creates chaos it's not their fault. Blame the legislators who wrote bad or vague laws in the first place. If the laws were sufficiently clear and specific then the Supreme Court wouldn't have much work to do.
And let's not have any ridiculous claims that the Supreme Court needs to legislate from the bench because Congress is dysfunctional. In most of the areas where Congress has failed to pass new or revised laws there are real divisions or lack of consensus in the country. It's more important to preserve our Constitutional separation of powers even if that leads to bad outcomes on particular issues.
> The US is a common-law country. By stare decisis, the courts are indeed supposed to be bound by precedent.
And that doesn't work, and it didn't even work to start.
IIRC, in Britain, before the US was independent, "common law" became so unworkable and and unjust because the courts were so rigidly "bound" by precedent (like you advocate), that a whole other system of law "equity" was created.
Most of the decisions that get to the Supreme Court could reasonably be decided either way. If they were simple, clear decisions they wouldn't make it to the highest court after all. I don't necessarily think the original Chevron decision was the "correct" choice, or the "incorrect" choice, but it was the choice that was made and for 40 years Congress wrote laws and funded agencies on the assumption that that is how things would continue to work. If it had been decided differently all those years ago, then 40 years of laws would have been written differently.
It's like the standard plug in the US. Was that the objectively correct choice for what a plug should look like? No. Is there possibly a better configuration that some other country is using? Yes. Would it be worth it to make the change now and make everyone in the country change all of their plugs and electronic devices? No.
In any of those laws Congress passed in the past 40 years they could have taken the opportunity to codify the original Chevron decision into law. So the fault for any disruptions or bad outcomes lies entirely with them. Voters who are unhappy with the situation should complain to their members of Congress.
Obviously an outright bad idea should not be kept around just because that's how we have always done it, but don't underestimate the value of predictability and stability. Society can't operates if laws change every day, even if it's driven by a desire to make the laws better.
Funny you should mention that. Gorsuch wrote the exact same thing while arguing in favor of overruling Chevron. You can find it by Ctrl+F-ing the string "though the laws do not".
> "Chevron’s fiction has led us to a strange place. One where authorities long thought reserved for Article III are transferred to Article II, where the scales of justice are tilted systematically in favor of the most powerful, where legal demands can change with every election even though the laws do not, and where the people are left to guess about their legal rights and responsibilities"
"Obviously an outright bad idea should not be kept around just because that's how we have always done it.."
But who decides that? Laws do NOT change every day and I look forward to your examples of that. The problem is that laws are not changing, and legislators are depending on the courts to do the hard work for them.
No but this is not a bad idea. Why should congress have to be experts and pass hyper specific laws for every aspect of a government agency rather than just deferring to experts?
Because those experts haven't been able to craft unambiguous laws that aren't up for interpretation. There's nothing stopping congress from deferring to those experts still.
If Congress lacks expertise on a particular topic then they can front load the process and seek expert input, then write that into the legislation. There's no need to delegate that to the Executive branch for interpretation after the law has been passed. This might slow down the pace of legislation, which would be fine.
There should be a very high threshold for "we're pressing the reset button on a regulatory infrastructure built on decades worth of precedent, #yolo!", yes.
There aren't three, there is every justice between when the decision was decided and now. Republican and Democratic judges upheld stare decisis for years.
Note Roberts isn't of questionable character but if he loses the conservative majority he may as well side with them to keep political capital. The other five not so much.
I don't see any of them as having questionable character, because if you focus on one you must consider them all, regardless of politics. You may have noted in Roberts opinion that this does not overturn decisions in the past, only the courts process for deciding them.
If accepting millions of dollars of gifts and trips from individuals with business brought to the court while neither recusing oneself from related cases nor even disclosing said gifts doesn't constitute questionable character, what does?
It may be immoral, and unethical, but they all do it, have always done it, and if the DOJ thought it was an actual crime I am sure they would have pursued charges in this highly politicized environment we find ourselves in.
They may have questionable ethics and morals, all of them, but we're stuck with them for life.
It's not even years of precedent, they contradicted themselves on this decision today in their separate ruling on allowing public sleeping bans. Roberts said "Why would you think that these nine people are the best people to judge and weigh those policy judgements?". SCOTUS follows tradition when it suits their lobbied interests, and disregards tradition if it contradicts them.
This reads more like interpretation is at fault rather than the actual ruling. The SC ruled in favor of the state(s), as in the fining for that reason is not unconstitutional or an overreach.
Long term, I wonder if this destroys the Supreme Court. I see no reason why a future liberal majority would feel bound by any conservative precedent in the future. Replace respect for precedent with whatever position wins a majority and the incentive to pack the court seems irresistible.
And this would be true for any activist court. To me, the combination of a flaccid Congress plus activist court implies an era of disposable precedents.
That seems likely. We already see it in the executive, with sweeping policy changes every time the office changes parties. Seems to be what we want, however, collectively.
I tend to agree that civil law should be better over the long term, but I don’t see this Supreme Court letting that happen. They pretend to be deferent to congress when congress is ineffective or on their side, but the script can be easily flipped or used both ways at the same time like they do with states rights. But ultimately they would not let themselves be constrained by a hostile congress.
This Court seems to be reducing both executive and judicial power, pushing it back to the legislature where it belongs.
But we now have worse representation in the United States than in Communist China, we're an extreme outlier among every OECD country, and this Congress is close to doing literally nothing:
So the result will be reducing federal power itself, kicking it back to the States. You know, laboratories of democracy. And now seemingly autocracy and theocracy as well...
There was a 7-2 liberal majority during the 1970s. They didn't feel bound by precedent either. That's how we got, for example, Roe v. Wade. (No, there was no precedent for "a penumbra" of privacy giving a right to abortion in any previous court decisions. And whether you like the decision is orthogonal to whether the court was making stuff up completely outside the realm of precedent.)
Conservatives aren't doing something that liberals have not done. Liberals will probably do it again when they have the chance. And so will conservatives.
You don't have to like it, either because it goes against what you want or because you don't think decisions should be made like that. But don't think that this hasn't happened before.
> There was a 7-2 liberal majority during the 1970s.
Can you break this down? I'm looking at the Martin-Quinn graph[1] for the 70s and I'm seeing a pretty centrist, if not majority conservative, slant for that decade.
How do you imagine a liberal majority would come about within the next few decades? This was engineered over decades and now the conservatives have all the marbles; that's why they feel so free to rule how they've always wanted.
I imagine you’d need circumstances similar to those that nearly resulted in the Judicial Procedures Reform Bill of 1937, which would have granted Roosevelt the ability to appoint 6 additional Supreme Court Justices. Namely:
- National crisis unifying popular support for liberal legislation.
- Liberal control of the executive and legislative branches.
- A series of supreme court rulings that effectively thwart a popular liberal agenda.
I have no idea if this is likely; however it nearly happened less than a century ago during a period with noticeable parallels to our circumstances today.
"(4) Because Chevron’s justifying presumption is, as Members of the Court have often recognized, a fiction, the Court has spent the better part of four decades imposing one limitation on Chevron after another. Confronted with the byzantine set of preconditions and exceptions that has resulted, some courts have simply bypassed Chevron or failed to heed its various steps and nuances. The Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. But because Chevron remains on the books, litigants must continue to wrestle with it, and lower courts—bound by even the Court’s crumbling precedents—understandably continue to apply it. At best, Chevron has been a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret . . . statutory provisions.”"
"Stare decisis, the doctrine governing judicial adherence to precedent, does not require the Court to persist in the Chevron project. The stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established, . . . and reliance on the decision,” Knick v. Township of Scott, 588 U. S. 180, 203 (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917)—all weigh in favor of letting Chevron go. Chevron has proved to be fundamentally misguided. It reshaped judicial review of agency action without grappling with the APA, the statute that lays out how such review works. And its flaws were apparent from the start, prompting the Court to revise its foundations and continually limit its application."
So.... Feels like all this ignoring Stare Decisis is setting the groundwork for the court to get packed and become another joke of our governance mechanism.
>> This court continues to make decisions that might be defensible if you were making them for the first time, but go against decades of precedent
The Roberts court has overturned fewer precedents per term than any court going back to at least the Warren court which began in 1953. If your criteria for evaluating a court is respect for precedent, you should consider the Roberts court to be a candidate for greatest of all time.
> What I'm hearing is that qualitative is clearly more important than quantitative.
I'm hearing a lot of "my-side likes this, therefore changing it is wrong." Liberals think it's the highest expression of the beauty of our republic when precedent is overturned to take things in a more liberal direction; but when precedent is overturned to take things in a different direction, they think it's an unjust violation of stare decisis and get outraged.
As understood (by liberals), the courts are a ratchet that moves things from less liberal to more liberal. To go the other way is evidence of inexcusable corruption and a threat to democracy itself, warranting urgent and extreme action to save society.
And to listen to many conservatives, any time a left-leaning decision is made by the court, we are one step closer to chaos, anarchy, depravity, fire and brimstone and the apocalypse.
Don't act like complaints about the courts are just liberal tantrums.
Except it wouldn't apply to this thread or the reaction to this event.
If you're being a jerk, and I'm commenting on your behavior, I'm not making any kind of error if I don't mention how Steve was being a jerk two weeks ago. And honestly, insisting that I talk about Steve would be an effort to deny responsibility and distract from your own behavior.
While corporations are cheering about the devastating the ability of the EPA to attempt to enforce its writ, "environmental protection", it doesn't make someone a jerk to lament the negative impact therein.
I believe the conservative judges use the following process flow:
1. Is the prior precedent what I want? If no, go to 2.
2. Is the prior precedent consistent with "textualism", i.e. can we find enough period writings which use the words in the constutition a certain way? If no, go to 3.
3. Is the prior precedent consistent with "originalism", i.e. can we find enough period writings which suggest some people peripherally or directly involved with the drafting of the constitution (or state constutitions) thought of an issue in the same way we want to rule? If no, go to 4.
4. Rule that way anyways, and just do your best to justify it with whatever you dug up for 2 and 3.
If Congress had a decent velocity/agility it would probably be okay. But their inability to pass laws in a timely fashion will make it very challenging for the federal government to keep up with societal changes.
That depends. The parts of the federal government that follow the most straightforward and reasonable interpretation of the law? None. Those that are despotic and issue novel interpretations that turn Americans into felons overnight? Let's hope it messes them up quite a bit.
Barely at all. The federal government will continue operating 99% exactly as before. A few controversial agency decisions will get reviewed and overturned, and Congress might even address those specifically in legislation, and even better, Congress might write better legislation. We'll see agencies lobbying Congress, too. But that's it. Few will even notice.
It would depend on the scope and extent that operations within an agency rely on their interpretation of the law. It will certainly be interesting to see the impact once the transitional period ends.
*reactionaries. "Conservatives" is now more of an appropriate label for the other party. I'm not making a judgement about whether this particular state of things needed to be conserved or shook up, just about the use of labels that imply wanting to preserve the status quo for groups that want to radically change it.
There must be a great deal of tension within the right. On the one hand, some undoubtedly consider themselves small government libertarian types, but the recently ascendent MAGA folks are decidedly authoritarian and absolutely willing to use the federal government as a weapon against their perceived enemies. This sort of ruling helps the former but not the latter.
"Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect." -- Francis M. Wilhoit
Viewed through this lens the actions are completely consistent.
This quote can be helpful for analyzing many situations. But applied generally it throws the baby out with the bathwater - people who legitimately want small government, and aren't merely using libertarian precepts as cover for an authoritarian agenda.
(as an aside I think if you're in the libertarian camp but yet still supporting 2024's radical republican party you're either hoping for outright societal collapse or you're gravely mistaken about what it now stands for)
> people who legitimately want small government, and aren't merely using libertarian precepts as cover for an authoritarian agenda.
AKA useful idiots. The fundamental debate between big versus small government is deceptive. What we really need is effective and efficient government (roughly in that order, in my opinion). Sometimes that is big, sometimes that is small.
I agree on the "effective and efficient" point. I'd say the deception mainly arises out of ignoring that corporations have formed de facto government. That's the fundamental contradiction that causes the banner of "individual liberty" be transmuted into "corporate liberty", still ultimately denying freedom to individuals.
So I do not agree with the "useful idiots" blanket characterization. It seems needlessly divisive, when what people who've become myopically focused on the nominal government need is to see the larger picture whereby corporations that capture markets, collude, and create externalities also independently destroy individual liberty. Not solely by regulatory capture, or otherwise enabled by the nominal government, but rather entirely on their own due to the fact that markets are not entirely efficient (P != NP).
If you give an agency the power to interpret the law that congress has prescribed to the agency, the agency will almost always chose an interpretation that is in their self-interest - often leading to a corrupt (really, just an outright wrong) interpretation of the law.
It's surprising that Chevron was ever even case law. Thank goodness we have a set of justices that are actually looking to get rid of conflicts of interest and focus on an objective and conflict-free rule of law.
It seems based on the dissent liberals want to relish in giving government agencies power to interpret what they want, which is consistent with yesterday's dissent from the liberals where the liberals dissented with the SEC case where the liberals dissent stated that the SEC should be able to prosecute individuals in their own SEC-based rules with their own SEC-based court.
The court system is moving to ensure there are more checks and balances and that the law is interpreted and prosecuted in a way that has less conflict of interest.
I strongly disagree. As someone above said it's the equivalent of requiring a meeting for every commit when building software. How good do you think congress will be at passing small laws when changes need to be made in federal agencies regulations?
If every commit of software had the potential to put someone in prison or ruin their life based on a law that didn't exist though the agency itself interpreted for their own self-interest, I would certainly want a meeting for every commit.
Furthermore, it's not "every commit" - it's commits that are questionable or have varying interpretations. Most litigation occurs relating to known laws that has substantial case law relating to it. The edge case situations are the ones that are not accounted for, and they're the far minority of litigation. It's these edge case situations which will require a meeting, and deservedly so. I'm sure you wouldn't be against that, however if you have facts to provide that would show this would be a bad outcome or what I stated would in fact lead to an absurd result, then please go ahead an provide it.
Wow, truly amazing all the people in here who are perfectly content to let unelected, unaccountable bureaucrats make one "rule" after another because it makes them feel like they're doing their jobs, only increasing the regulatory burden on everyday Americans. So sad how many people prefer an oppressive regulatory government over the freedoms and liberties America was founded on.
One of the issues that led to this decision is regulatory overreach. Standard example is the clean air act which regulated air pollution. Years later the EPA decided that green house gases were air pollutants that could be regulated under the act. Then they tried to say that CO2 was a pollutant, and businesses started to fight back hard.
> Pollution, the addition of any substance (solid, liquid, or gas) or any form of energy (such as heat, sound, or radioactivity) to the environment at a rate faster than it can be dispersed, diluted, decomposed, recycled, or stored in some harmless form.
It means a judge can, if they so choose, decide if an ATF rule is lawful or not instead of the ATF itself always having the final say. Speaking of the ATF, it took a Supreme Court ruling to get ammonium perchlorate off the explosives list so model rocketry could continue as a hobby. With this ruling, a case like that wouldn’t have to go all the way to the Supreme Court. This is a good thing.
They won't be able to stretch the law as much as they have at times. As the court's decision in Raimondo and the concurrences note, the court had already stopped using Chevron since 2016. Notably the court ignored Chevron last week when they decided that bump stocks are not machine guns -- if you read that decision it was all about the interpretation of "more than one shot with a single action of the trigger", which is precisely what the court would have deferred to the ATF on under Chevron and which it did not now.
The scaffold of federal gun control (NFA etc.) remains untouched by Raimondo. Only ATF rulings regarding various technologies developed in the past 40 years will be affected, and probably not that very many. I doubt more than a very small handful of ATF rulings will be affected.
I think it's good that courts will no longer have to defer to federal agencies granting themselves powers "because we say so." This will stop mission creep of the federal regulatory agencies and correct a long term error in court precedent. The Supreme Court is doing its job.
> It has been nearly 40 years since the Supreme Court indicated in Chevron v. Natural Resources Defense Council that courts should defer to an agency’s reasonable interpretation of an ambiguous statute. After more than three-and-a-half hours of oral argument on Wednesday, it seemed unlikely that the rule outlined in that case, known as the Chevron doctrine, will survive in its current form. A majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it.
> Justice Sonia Sotomayor agreed with Kagan. She doubted whether there can be a “best” interpretation of a law when the justices “routinely disagree” about a law’s meaning. The real question, she said, is who makes the choice about what an ambiguous law means. And if the court needs a “tie-breaker,” she continued, why shouldn’t it defer to the agency, with its expertise?
> Justice Ketanji Brown Jackson posited that the Chevron doctrine serves an important purpose. Under Chevron, she suggested, Congress gives federal agencies the power to make policy choices – such as filling gaps or defining terms in the statute. But if Chevron is overturned and agencies no longer have that power, she predicted, then courts will have to make those kinds of policy decisions.
> But Justice Brett Kavanaugh saw Chevron’s deference to agencies differently. Chevron, he complained, “ushers in shocks to the system every four or eight years when a new administration comes in” and implements “massive change” in areas like securities law, communications law, and environmental law.
Generally: it seems that the USSC has been more been willing to throw out precedent and (not so?) settled law.
The USSC is about to go on 'summer break', and so is releasing quite a few rulings all at once in a short time frame; a running tally seems to be available at:
They are definitely defying precedent more than any Supreme Court in recent history.
The other thing this ignores is judicial bias. One positive of the Chevron ruling is that a well scoped agency with a clear agenda and expertise was able to oversee their domain of expertise and enforce rules under the Chevron Doctrine, which means in a well functioning agency (e.g. generally the SEC, FTC) didn’t have to rely on lengthy and often partisan court trials.
If you look at how we handle patents for instance, you have a good taste of what things going to look like going forward. It will completely hamstrung agencies and delay regulation enforcement for years if not decades. Unfortunately judges aren’t without bias and partisanship and this will reflect in the venues that get used for these hearings, like how most patent cases end up in a small Texas court due to how favorable that court is to patent holders.
This is going to be a mess. I don’t foresee judges deferring to agencies to speed up judicial review. I see courts becoming an even bigger partisan battle ground than they already are.
> They are definitely defying precedent more than any Supreme Court in recent history.
Than any court period. No supreme Court has been this bold in overturning precedent. Before this court, the last time that happened was brown v board of education.
> Chevron, he complained, “ushers in shocks to the system every four or eight years when a new administration comes in” and implements “massive change” in areas like securities law, communications law, and environmental law.
New laws being enacted as governments change is not a shock to the system, it is business as usual. Overturning decades old precedents on the other hand...
> Conservatives will not go into the night quietly.
David Frum in 2018:
> Maybe you do not care much about the future of the Republican Party. You should. Conservatives will always be with us. If conservatives become convinced they cannot win democratically, they will not abandon conservatism. They will reject democracy. The stability of American society depends on conservatives' ability to find a way forward from the Trump dead end, toward a conservatism that can not only win elections but also govern responsibly, a conservatism that is culturally modern, economically inclusive, and environmentally responsible […]
The problem isn't "new laws being enacted as governments change", it was "new interpretations of existing laws being enacted as control of the executive branch switches parties". Net Neutrality either is or isn't the law of the land, depending on which president last got to appoint to the FCC, and is in charge now. Federal prosecution for possession of marijuana is or isn't the law of the land depending on which president is in charge of the DEA. It should be considered a complete failure of our system that the status of those things can change overnight, without debate or challenge and on the whims of which of the octogenarians running for president wins in November.
> It should be considered a complete failure of our system that the status of those things can change overnight, without debate or challenge and on the whims of which of the octogenarians running for president wins in November.
I would consider an election to be the highest form of debate and challenge. It is not a failure of the system that the leaders the people choose get to lead the way they see fit, that is the point of the system.
Yes, the election of our legislators, whose job it is to craft laws. Not the election of one single person whose job it is to oversee the enforcement of those laws. Our government is built with its powers divided up, and the ability to change law intentionally kept out of the hands of individual deciders. The president isn't even (technically) allowed to send the military, of which they are the constitutional head, to war without congress' consent.
If anything the last two elections should have taught everyone the dangers of resting so much power in the hands of a single person.
If the Executive is not allowed to decide how laws are executed, what exactly has he been elected to oversee?
The agencies of the executive branch have been making decisions on how to enforce the law based on the president's discretion since Washington. That's how the constitution was set up to work. That's how congress has assumed every law they've passed would be handled. They have always been free to put more details into their laws to take the discretion out of the hands of the executive, and they have chosen not to, as is their prerogative.
Yes, the executive is allowed to decide how the laws are executed. And in the event that such laws are ambiguous, the courts are supposed to make a judgement on what the law is. If you default to just deferring to the interpretation of the executive, why have a legislative branch at all? Why not just pass a law that says "regulate all the things"?
Our government is intentionally limited. It may only do the things it has been explicitly granted the power to do. When whether that power has been granted is ambiguous, that is something that needs actual judgement on. We should not have a default to the government's own interpretation. We certainly don't (try to) default to the courts just assuming whatever the police say the law is when it's ambiguous is what the law is. Why should we do that for other regulations?
All you need is a lot of money, a lot of time, a problem that is fixable, legislators willing to work together, and/or a judiciary operating outside political ideologies.
Regulators don’t make laws and local governments have spent years limiting corporate liability, so I don’t think your opinion on this is based in reality, unfortunately.
Actual laws are up to congress etc which frankly don’t understand the intricacies because it’s not their job. So it’s common for agencies to be given authority to oversee something without a law explicitly defining specific level of salt in drinking water etc. Regulators therefore don’t make laws only clarifying where boundaries exist (safe levels > X ppm).
Deference for unintentional ambiguity seems unrelated, but in the real world people want to know where the lines are so they can respond accordingly. Not knowing where the limits are gets expensive for anyone not trying to push boundaries.
Lawsuits meanwhile are horrifically inefficient in terms of time. What exactly are people supposed to do while waiting for a lawsuit to finish? For some things sticking with existing guidelines works but nobody wants to make major investments when the underlying rules are about to change. Clarity is far more valuable than generally perceived and that’s what’s being destroyed here because the courts even decades to make the meanings of laws clear.
This decision is therefore directly and significantly harmful to the US economy.
In theory, I entirely agree - regulation should not be decided by agencies, but by lawmakers. In practice, this is so painfully far from reality. Do you really think congress has the ability to pass meaningful legislation on complex issues? Do you think that lifelong politicians can do a better job than civil servants who have spent their entire lives studying this particular issue?
Well, let's see.. The Affordable Care Act was a meaningful law based on a very complex issue. Was that wrong? Do you think civil servants with no oversight is better somehow?
When Congress writes a law that establishes a new regulatory agency, they outline what that agency does and how they enforce the regulations. Inevitably as time goes on, new edge cases come up or someone realize that the law is ambiguous. Chevron deference established a precedent where the regulatory agencies were allowed to resolve these ambiguous cases or do things not specifically written into the law. This decision means that companies can now fight certain decisions they couldn't previously.
For example, one of the cases that led up to this was due to the National Marine Fisheries Service forcing fishing companies to pay their monitors' salaries. The law established the monitors and their role, but it did not say that the companies must foot the bill.
So basically, Congress is going to have to pass more updates to previous laws to reflect what the regulatory agencies need or want. Basically, fix the bugs in the core legislation instead of patching it downstream.
This seems really inefficient though. Do we really want top-down authority of decision making like this? No one would think it was good if in a company where if the rules of how to do your job were vague (and in this case, we're talking about delegated responsibilities), you had to go to the board of directors to get them clarified.
> This seems really inefficient though. Do we really want top-down authority of decision making like this?
No, which is why we want the people previously free to make top-down decisions, i.e. executive-branch agencies, to be subject to judicial oversight when attempting to read new powers for themselves into the law. Doing away with Chevron restores that oversight.
And it may be so, but the law/constitution doesn't automatically morph to adapt to whatever some particular person thinks is more efficient. If this is really needed, maybe it's time for a constitutional amendment adapt the structure of the government.
We can nit pick what you meant by 'automatically' morph, but the fact that it was just forced into a pretty severe morph to adapt to what 6 particular persons wanted I think challenges the argument you're making.
Welcome to the core of the Anti-Federalists argument. They saw a Federal government as an inevitable on-ramp to creating a top-down governed society. Chevron deference represented a worsened slip down that slide, because each Executive Agency basically Lorded over it's National scaled domain without chance for redress in the relief valve specifically designed for the task; the Courts/the Judiciary.
With Chevron deference struck down; it's now possible to even get an Agency's administrative law sanity checked by the Courts.
That's absolutely 100% false. The Federal Food, Drug, and Cosmetic Act gives the FDA considerable authority to shut down a food factory if it is not adhering to regulations and laws regarding safety.
Where do you find that the FDA cannot shut them down?
But who is making those regulations if congress doesnt write those specific regulations into law? Isn't that the whole point of this being overturned.. the FDA no longer can make regulations that arent explicitly outlined in a bill.
The FDA can absolutely make regulations so long as they are done with the authority granted to them in the law. The problem has been agencies, such as the FDA whom I have worked with for going on a decade, have grossly overstepped their congressional authority. When challenged, the government's case is that the administrative regulators know best, and because of Chevron, the courts should defer to them, even if it's an overreach beyond their congressional authority.
This is not about specific regulations, it's about the authority to write those regulations and where the boundaries are.
Therein lies the issue: Regulators have gone beyond their authority, not only into what is unreasonable, but what is not backed by statute. Chevron said the courts should give deference, unfortunately that deference has gone too far.
Taking your point however, I think congress will eventually be forced to act on this. We do need some deference to regulators, but that deference has been turned into legislative abdication. This decisions sets that right.
When congress is ready to write a law that gives greater deference to regulators they will. Until then, in my opinion, this was a proper decision of government restraint.
I don’t think I can support an objective idea that it’s “gone too far” when the decision was on ideological boundary. This was political activism not jurisprudence.
By opening the package of salmonella you've agreed to binding arbitration agreement in the venue of their choosing.... Sadly I'm not even that far from serious.
> The Supreme Court on Friday reduced the authority of executive agencies, sweeping aside a longstanding legal precedent that required courts to defer to the expertise of federal administrators in carrying out laws passed by Congress. The precedent, Chevron v. Natural Resources Defense Council, is one of the most cited in American law. There have been 70 Supreme Court decisions relying on Chevron, along with 17,000 in the lower courts.
Huge and positive in the direction of lawmakers making law, not regulatory bodies that are unelected. Similarly in favor of trials by jury and not by regulatory administrative courts.
A huge win for democracy and freedom that both major US parties and all citizens should celebrate.
Government agencies are similarly dysfunctional, though they do have the benefit of (at least hypothetically) hiring subject matter experts to guide policy, but that's kind of why we have committees in the legislative branch.
The other issue of course is that the people leading agencies are playing politics just like everyone else. Do people not remember the controversy surrounding Ajit Pai's leadership of the FCC?
The difference is you vote for your legislators directly and can hold them accountable for their actions. For federal agencies, you're at best indirectly voting for them through voting in a presidental election, but mostly there's no accountability.
To borrow from Babbage, I can't rightly comprehend the kind of confusion of ideas that might lead one to complain about political institutions being political.
The entire purpose of the political (and judicial) process is to reconcile to competing interests and conflicting values of the wide variety of people who make up society.
It is a delusion to hold that the matters regulatory bodies are involved in are somehow entirely empirical questions with unambiguously correct answers -- in reality, there are normative questions, value judgments, trade-offs and conflicts of interest inherent in every decision point.
These decisions are political ones, and allowing regulatory bodies to make inherently political decisions for everyone else can only have the effect of entrenching one faction's interests and values at the expense of everyone else's.
our "regulatory bodies" (everyone's fav new word) allowed US companies to poison the blood of every child in the world and those companies and people responsible faced little consequence.
Why so much distrust for our civil servants? Have you met any of these people? I grew up in the DC area and both liberal and conservative civil servants are dedicated to truth, science, and the well being of the American people. Sure, there are exceptions, corruption is everywhere, etc. but by and large, the people who work in government agencies have our interests in mind. I say this as a liberal who briefly consulted for U.S. Customs and Border Protection - the people working at that agency understand immigration far better than I ever could. If you left it up to radical politicians to decide immigration, you'd be left with policies that swung too far in either direction every four years.
What have they done to earn my trust? Why would I choose to outsource critical decisions pertaining to my own life and affairs to strangers who are not meaningfully accountable to me and have no direct understanding of my values or interests, regardless of how well-intentioned they may be?
What possible reason could there be to give civil servants authority to make decisions that materially impact us without any oversight or accountability?
Yes, I was a government contractor for a significant portion of my career. This certainly didn't encourage me to trust elected officials or agency employees.
Hey, you can have this position. Just realize that you've lost your future right to complain about project 2025 when that passes and every agency has all their civil servants replaced.
They are putting their faith in a system of civil servants that want to serve the country and do their job, in comparison to those selected to break the system.
So then actually, yes the ruling was correct, and yes people are right to put this power back into the hands of congress, and out of the hands of civil servants.
Whatever terrible thing that someone would be complaining about in the future, it is mitigated by this correct ruling that helps stop that supposedly bad thing.
If you want to accept that position that I just laid out, then fine. You agree with me, but you would also be agreeing with the supreme court decision.
The era of a bipartisan civil service is past. The civil service, at least those offices which are in and around DC, is heavily liberal and is trending more so over time. In 2020, DC went 92% for Biden, and Biden also handily won every county with significant government employment in Maryland and Virginia.
Though I couldn't easily find any hard statistics, which may not exist for Hatch Act reasons or otherwise, I'd rate the current composition of the DC-centered civil service at around 70-80% Democrats; defense and intelligence a little lower, health and social services a little higher. If current trends continue, this will reach 90% in many agencies within a decade.
Whether this is a problem or not is a different matter. It is obviously not representative of the country as a whole, though that is only based on a rather shallow and one-dimensional analysis. However, it explains at least part of why this is happening.
No, that's the core issue. They are overstepping the authority granted in legislation. If Congress passes an open-ended law saying "Agency X can administer Y in accordance with rules 1,2,3" then the agency should not be able to simply decide that rules 4,5,6 should also be created. This is what has been happening for decades, has been defended by Chevron, and is being forbidden by this decision.
A regulatory body that is staffed by people who are well versed in the intracacies of the industries they are overseeing, rather than Representative Marge McCrazyPants who legitimately believes in the existence of space lasers owned and operated by certain religious adherents.
First, that's not true. It's just a degree of separation from your vote that you're uncomfortable with.
But yes, the fact that 99% of our government is made up of these people who are a few layers separated from direct political bullshit is why it functions at all.
We are much better off when these agencies operate autonomously and elected representatives can intervene when necessary instead of making them go back to the meat grinder to do anything.
I don’t understand this take, because the elected officials could have always made any law regulating this stuff regardless of this ruling. The fact they haven’t tells us something.
And this ruling will result in a lot of the common good (limited resources like fish, air quality, etc) being trampled upon and becoming the profit of a couple companies, taking these goods away (sometimes irrevocably such as in the case of over fishing) for the generations of the future.
We need our regulatory bodies to be able to move faster because by the time congress might respond it will be too late.
There's a very good reason why technocrats are better prepared to implement policy and enforce it. They usually have vantage points from which they know the intricacies of the field under their purview, understand where compromises must be made and conversely points where it _should not_ compromise. A good administrator needs to have abilities to administrate without second guessing by a third party, unless it's demonstrable that their general objective (which every state institution has) isn't congruent with the actions taken.
Someone made the example of a factory that sells products for ingestion. If the regulator (FDA) doesn't have the tools to effectively protect the public of insecure foodstuff, who will? Consumers? Consumers will eat excrement if the price is low enough, because that's what's is available to them. Consumer power isn't vested in the consumers, it is vested in the regulatory agencies, since these have resources and expertise to recognize unfair, unsafe, anti-competitive, anti-consumer, etc practices, because unlike consumers, these have an advantage point of view, rather than the individual trying to find others with their same condition.
How is it a win when the US justice system is so incredibly broken? This is a win for rich people and greedy firms who can drown their victims in drawn out legal action by throwing money at them. Jury trials are a zero sum game and are not actually that great at achieving just outcomes. They make sense for individuals, but corporations are NOT people and should not be entitled to the same constitutional rights.
But there's also a revolving door between the regulators and the companies they regulate. Sure, Congress is dysfunctional. But regulators are also flawed.
At least that’s an expert, qualified person going astray which is an infinitely better situation than someone with no expertise succumbing to populist and corporate demands because their seat depends on it.
> A huge win for democracy and freedom that both major US parties and all citizens should celebrate.
You've said this elsewhere in thread but you're making an idealogical claim with no supporting information. Congress is virtually non-functional, the court voted on idealogical lines, it only benefits one party to put more responsibility into congress.
So maybe 50% of the country should be celebrating?
I for one see a lot of problems with this ruling and the secondary and tertiary consequences it will cause.
Chevron says (said) that the courts should defer to agencies as the experts in their specific arenas when interpreting vague laws. This situation comes up a lot. It's quite common for Congress to delegate to an agency with only quite broad language, relying on the agency to fill in the specifics through regulation.
Practically, the major effect here is to reduce the power of the executive (and of Congress to delegate to the executive) and increase the power of the courts.
Like many of the Supreme Court's actions, it needs to be understood in the context of the years of history of Congress being in an almost total state of paralysis, so decisions that nominally "kick things back" to Congress are of enormous significance.
The decision tries to say that this doesn't affect the solidness of the many many prior cases that relied on Chevron deference, but expect a flood of challenges to regulations in basically every field.
If a Federal law telling you what you can and can't do with widgets was ambiguous, then courts were previously required to defer to the Federal Widget Agency's interpretation of the law as long as the judge found the interpretation "reasonable."
Now, if there is a lawsuit or other legal matter over widget usage, the court can take the Federal Widget Agency's interpretation of the law into consideration, but is free to rule however it sees fit on the precise interpretation of Federal widget law.
We are now going to need to place a great deal more trust in Congress to legislate with nuance and understanding of the issues. Obviously the congressmen cannot really become that knowledgeable about every topic, so they will rely even more on advisors to write the legislation for them. We have some idea of how this plays out, because it already happens.
The more things like this happen, the more the function of government (and business, and relationship between labor and business) will return to the way they were operated in the US between 1880 and 1920.
So if courts aren't to defer to agencies on such matters, to where do they look? Congress? The executive? We can hate on regulatory agencies all day long, but they are least get stuff done. They show up to work and figure out how to move forwards. This decision seams a win for those political groups who, rather than actual fix anything, are bent on throwing sand into the gearbox.
They did Chevron. Chevron was brought as a challenge to what was happening. The Chevron court basically said, "keep doing what you are doing. We are OK with it." Post-Chevron there was just a name and a more codified description of the past approach.
So many comment without reading the decision. Raimondo means only that the courts won't defer on matters of interpretation of law. If the agencies stick to the text and spirit of the statutes then their regulations will hold up. If they stretch the law, then they won't.
And comparing the likes of the IRS or FDA to the tyrannical regimes of the past is the hallmark of sovereign citizens, tax protestors, healthcare deniers, and other bunker-dwellers who see view traffic tickets as an attack on their god-given right to drive a Tesla while trading bitcoin on a cellphone.
This ruling removes power from the executive branch and returns it to the state and to the people. How anyone could view this as a terrible thing is bizarre IMO. In what world is giving federal agencies wide powers to interpret laws and decide the best ways to apply them a good thing? That's a rhetorical question because the answer is it isn't.
Remote ID, possibly. Raimondo means only that the courts won't blindly accept an agency's interpretation of the law, but sometimes -often!- the court's interpretations will roughly agree with the agencies'.
For the 400ft thing you'd have to look at what the FAA wrote in their ruling about how it's within the letter of what statute(s), and then reason for yourself whether that's a stretch, and then wonder what the chances are that the courts will interpret that differently.
The basic trend in America has been to defer power to an administrative state beholden to the Executive. This accumulation of power has the basic effect of enabling tyranny. To prevent tyranny it is necessary to check this concerning accumulation of Executive power.
Does this decision do that, or does it just move the accumulation of power to a different branch? From bureaucrats who can be fired to unelected judges with lifetime tenure. How would you argue that this is an improvement?
The response may be that Congress makes far more specific legislation, along with all the weird pitfalls that will come from that, and outsources the actual text to corporate lobbyists. That seems like a win only if you implicitly trust that corporations are working in our best interests. Is that a core plank in the conservative platform?
> How would you argue that this is an improvement?
Not all branches have the same risk of tyranny. The Executive branch consists of about 1 million unelected government employees, following a rigid command hierarchy who wield power over every aspect of society. The Judicial branch consists of about 900 federal judges who work on a limited backlog of cases. No one from the Supreme Court is going to come knocking on my door if I defy one of their edicts, but as for the Executive branch, you can count on it.
My Trojan program is written on only about 5000 lines of code, but runs on 5 million machines around the world. It’s really not my fault you should blame the computers for stealing your data. I’m not personally doing it.
> Does this decision do that, or does it just move the accumulation of power to a different branch?
Yes, it does do that; no it does not move the accumulation of power to a different branch. It restores the distribution of power among the distinct branches of government, and stops executive-branch agencies from operating as legislature, executive, and judiciary all rolled into one.
It's not moving power from the executive to the judicial branch, it's forcing legislative responsibility back on Congress.
Note that constituents in the U.S. have the worst representation of any OECD country. Worse than Commie China. America's biggest problem is the "Permanent" Apportionment Act of 1929.
I agree. Congress is far too small. Both the house and senate. There's too much work for them to do.
I would go even further: maybe congress should be expanded such that we have different chambers for different aspects of life. This way we could elect a lawmaker for each domain... e.g. 1 focused on environmental legislation, 1 focused on financial legislation, etc... rather than trying to cram all sides into a single unicorn lawmaker.
Government Domain Driven Design sounds like something only a consultant could come up with. None of these domains are free from side-effects in the other domains.
> it's forcing legislative responsibility back on Congress
I mean it's not really going to do this in practice, because Congress can and will continue to be dysfunctional it just means that the court rather than the agency is going to make the call on what the law means. Without a way for the judiciary to be say, "this law is too ambiguous to rule on, Congress must pass a law right now clarifying their intent, then we will issue a ruling" it's just going to be the judges making a call.
If Congress doesn't want to do anything, and this one clearly doesn't (they look to be on pace for the fewest acts ever), then that just effectively kicks the responsibility down to State legislatures. Good for distributing power. You know, laboratories of democracy.
Anne Gorsuch Burford was appointed by Reagan to head the EPA. She beleived federal regulations had become too onerous and the power of the administrative state had become too large. It was her mission to roll back environmental protections and gut the agency through reorganizations and layoffs.
This did not go well. She ultimately resigned over a scandal where she withheld funds to help clean up a site to hurt a Senate campaign and lied about it. The Reagan administration eventually discovered the lie and I believe she resigned to avoid proseecution.
The EPA under Reagan tried to limit clean air responsibilities by narrowly scoping what a "source" of static pollution is. The Natural Resources Defence Council ("NRDC") sued, in a case called Natural Resources Defence Council v. Gorsuch [2].
Interestingly, the trial court judge was future Supreme Court judge Ruth Bader Ginsburg. The Court ruled against the EPA. That case was appealed to the Supreme Court as Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc [3].
The Supreme Court reversed this decision and said that the EPA had the broad authority to define what a "source" was as policy and this become the basis for what we now called (or used to call) "Chevron deference". It's worth noting that SCOTUS at the time made what was then a pro-corporate and anti-environmental decision.
Former EPA Anne Gorsuch Burford's son is Neil Gorsuch, current Supreme Court justice who voted to overturn Chevron deference and essentially avenge his mother, continuing her anti-government legacy.
There’s a lot of negativity around this ruling here on HN.
As a not-lawyer, non expert, I welcome this ruling. The strongest argument I can make in favor of this come from the dissenting opinion by Justice Kagan:
> This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
> It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court...
In other words, Congress can not get its shit together, but someone still has to do the work of figuring out what rules we should all follow. Congress would much rather play politics and make speeches and theatrical high-drama hearing rather than doing the hard work of legislating laws.
It is obvious that Congress can not get all the details right. Neither can the regulatory body. The only advantage of delegating the work of rule-making to regulators is that the iteration times are faster.
Why are the iteration times faster? It has more to do with the Congress being a dysfunctional body.
When incompetence is rewarded by reduced work loads, incompetence is amplified.
Yes Congress can not get their shit together. But that’s way more visible to voters when their incompetence translates to visible inaction.
This is the way the system should work (in my opinion). Feels like a positive ruling to me.
> When incompetence has more responsibility, the effect of incompetence is amplified.
Correct. This is the desired effect.
Today, Congress hides behind endless procedural votes and dramatic hearings and grandstanding against political opponents and basically doing everything except for useful work.
Now, not only are they on the hook, their incompetence is (hopefully) going to be amplified.
The all-talk-but-no-legislating politicians will, over the next 20 years, get weeded out one by one.
> The all-talk-but-no-legislating politicians will, over the next 20 years, get weeded out one by one.
Can you show evidence of this strategy working somewhere else? This isn't a competitive marketplace where failure to do useful work is punished, what we have learned is that people want grandstanding over effective politicians. The losers won't be the politicians.
> Can you show evidence of this strategy working somewhere else?
The best example of this strategy in action would be the US Congress before the 1984 Chevron Deference ruling.
Was Congress more effective back then? One way to check if people got more grandstanding or less grandstanding is to see if there was more bipartisan legislature before 1984 than after.
There was more bipartisan legislature before 1984 and the difference is dramatic [0][1].
I'm not a social scientist and one could possibly bring up all sorts of other reasons to justify this as a coincidence or caused by something else entirely or whatnot. I don't have the resources here to put together an entire detailed study to find and untangle confounding factors.
I will only point out that as many things being common as possible (same congressional body, same voter base, same senators) - the time before Chevron deference was dramatically different from the time after Chevron deference, in terms of what Congress felt it should do to earn reelection. It acted accordingly.
There were so many changes to politics in the 1980s that trying to connect the Chevron ruling to the decrease in bipartisanship, which was already decreasing as the political parties transitioned into opposing alignments, is a serious stretch IMO. The 1980s, starting with the election of Reagan, were when the Conservative party realigned itself entirely in opposition to the Liberals of the time.
It is hard to imagine now, but political scientists in the 50s and 60s were arguing we needed more ideologically pure parties because the parties were so intermingled with each other.
My pet opinion is that in the late 1960s to early 1970s the United States, for all intents and purposes, became a post-scarcity society. This means that politicians stopped trying to figure out how to make the pie big enough for everyone, which they could find some middle ground arguments for, to how the pie should be distributed. The latter is not a solvable problem, just an endless argument, so here we are.
The conservatives in for some crazy awakenings with this. So many federal law enforcement practices that are super shady get handwaved away under the Chevron doctrine. I think this was a bad ruling as far as running a functional country goes, but a lot of shady stuff the government got away with is finally going to get stopped.
Good. Make Congress do its job. Erode the executive until we're not frothing at the mouth every 4 years worrying about who will be "in charge," and instead focusing on the actions of our congressional representatives.
Even trump was on a tight leash with that and basically just carried the old torch like every president does. Oh I guess he had too much lunch with putin but its not like he took us out of NATO kind of like the conservatives in the UK did with the EU and brexit. A bunch of talk but the same old neoliberal walk we've been doing for decades.
Why did the Supreme Court invent Chevron deference 40 years ago? To serve corporations. It's not called "Chevron" because it's about inverted V's, after all. The EPA wanted to interpret the law in a way that Chevron liked and the Natural Resources Defense Council did not like, so the Supreme Court said "no, no, the EPA gets to decide, we are but poor unqualified judges."
Why did the Supreme Court take it away? Because agencies started interpreting laws in ways that corporations did not like, so the Supreme Court changed its tune to "who are these agencies to interpret the law, we are the judges here."
Per the written opinion, Congress started purposely drafting vague laws with the intent of having them interpreted by unelected (politically appointed) officials in a manner that best suited their agenda.
So it seems reasonable to me that once the circumstances change (or we have more data), so would the law. It was a nice experiment, I'm glad we tried it, now we know people are people, and thankfully it's mostly done.
This is pretty much direct irrefutable evidence that the SCOTUS has been corrupted. The extreme ideological tilt is disturbing enough, but it's clear that these judges answer to the highest bidder, not the American people or the intent of the Founding Fathers.
If the spirit of the ruling originally by the SCOTUS was to benefit corporations , and they overturned it because it was no longer benefiting corporations - are they really corrupted? Or just business as usual?
What? Some guy making a vague statement on a web forum with nothing concrete to back it is "direct, irrefutable evidence"? I'd like to see any evidence at all that any SCOTUS judge is actually profiting from this decision in any way. Chevron was corrupt 40 years ago; overturning it is not, or at least isn't more corrupt than the decision originally was in the first place.
Clarence Thomas? The huge amount of gifts he's taken from Republican donors who have ties to real estate companies and businesses that benefit the most from things like 'pesky environmental regulations' being weakened or removed?
Judges are appointed, not elected. Federal Judges receive lifetime appointments.
This decision takes power away from elected officials and hands the power to appointed officials, officials appointed for life.
Conservatives have played the long after to Roe to attempt to stack the courts with conservative judges. This is how we got to the Supreme Court that we have now.
There's a tendency among certain people on HN to act like the conservative justices have no rhyme or reason and are just a bull running mindlessly through the china shop breaking precedent at random or specifically to hurt specific groups of people.
I'm not a fan of every ruling that they've made, but this should have come as absolutely no surprise to anyone who's been paying any attention to the arguments that this court has made over and over and over again. Their legal and constitutional philosophy has been very consistent:
They believe that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets them. They believe that the Executive branch and the Judicial branch have been compensating for Congressional failure for too long and they have been very clear that they're intent on undoing that and rolling the system back to how they believe it should be.
There's an argument to be made that this theory is incorrect and/or harmful, but they've been remarkably consistent in applying it. Anyone who's been listening to them saw this coming years ago.
Nobody doubted this is where it would end up - but it's a terrible place at complete odds with judicial restraint and precedent. The courts are going to be the de facto regulatory body in the US going forward, a responsibility they granted themselves out of thin air.
> a terrible place at complete odds with judicial restraint
On the contrary, they see themselves as them undoing many decades' worth of lack of judicial restraint. It's a change only because judicial activism has been the norm.
Conservatives don't believe in slow change, they believe that the way things were is generally speaking the way that things should stay. Rapidly undoing changes that were accreted since the "set point" is the entirely rational response to those accreted changes if you have picked a set point where things were supposedly ideal.
Sure. But for a long time conservatives decried judicial activism. This court has made it obvious that for many what they really didn’t like was activism that went against their politics.
No, the court has made it obvious how much they dislike judicial activism: so much so that they're willing to roll back decades of precedent and likely cause a lot of confusion for a very long time in order to undo most of the judicial activism from the past.
I'm all for a healthy debate on whether this is good policy, but the caricatures of this Court that keep showing up on HN aren't helpful for anyone. They lead to severe misunderstandings and bad predictions of what the Court will do next.
With this decision they’ve quite literally moved the courts more directly into the executive. It may not be the activism of prior courts but it’s not a move to limit judicial power.
Once precedent has already been set over and over again, changing said precedent is, in itself, activism. Same as with Bruen: One can dress it in restraint all they want, but it's a massive divergence in the interpretation of the law, in ways that don't even necessarily have serious textualist support.
I don’t understand this viewpoint. Remember, Chevron is only about who gets to make a final determination of what a Congressional statute means. How could it possibly be anybody else’s job other than the courts’ to make that decision?
A far more accurate framing is that Chevron abdicated the courts’ duty to be the interpreter of statutes, which is one of the most fundamental aspects of being a court.
This does not limit Congress’s ability to delegate discretion to agencies. It just has to do so explicitly.
I'd love to see where in the APA you feel that this is demanded and why during the interim 80 years of court decisions relying on the APA that no other court deemed it necessary.
Courts have made common law since before the Magna Carta. To say they’ve granted themselves that responsibility out of thin air grasps at the root of western civilization as we’ve known it.
I think it's fair to say that the conservative justices have not been consistent with their professed ideologies.
For a recent example, in SNYDER v. UNITED STATES the dissent appears to say, to me, that the majority opinion was neither originalist nor textualist in deciding that 18 U. S. C. §666 applies only to bribes and not gratuities. [1]
I'm not a lawyer, but I worked in a lawyer-adjacent job while in the military once and ever since I've followed the law as a bit of a hobby. Even with a small bit of training and experience, I'm not exaggerating by much when I say that the average person has absolutely no idea how the law is interpreted or how legal procedure works.
I really believe a large number of people view lawyers as the real-world equivalent of wizards or sorcerers from D&D. You say the right incantations, and then through either knowledge or force of will, something you want to happen happens through the force of magic.
In reality, even the six in the majority are still (for the most part) interpreting the law, not forcing their policy preferences on it. But people who don't understand how the whole system works (or that the Justices more often than not rule unanimously, if not 7-2 or 8-1) just see the policy outcome and either go "I like it, Court good," or "I hate it, Court bad and illegitimate."
The article mentions Clarence Thomas has been courted (even bribed?) by the very people paying the lawyers trying to overturn Chevron. I think it's naive to believe the judges don't have policy preferences that are strongly reflected in their rulings... If that wasn't the case the GOP wouldn't have blocked nominations from Obama to get their preferred judges in.
For sure, the President and Congress try to get Justices who agree with them. But you only have to go back to Anthony Kennedy and David Souter to realize that once they're on the Court, the Justices don't seem to ever feel beholden to the party or President that appointed them. George H. W. Bush appointed Souter, who ended up as one of the most reliably liberal Justices on the Court. Trump has been consistently smacked down by the very Justices he appointed.
And as sketchy as some of Thomas's dealings look, he's one of nine. Assuming for the sake of argument that he IS bought and paid for, you still need at least four other people to sign on to anything he says for it to be a ruling.
>I really believe a large number of people view lawyers as the real-world equivalent of wizards or sorcerers from D&D. You say the right incantations, and then through either knowledge or force of will, something you want to happen happens through the force of magic.
A classic example is how many people call any law they don't like "unconstitutonal". The logical corollary is that any law they like must be "constitutional".
That legal philosophy is a dog whistle. The fact is congress did write these laws, and they wrote them in this way with the understanding that they would be executed by the executive branch and interpreted by the courts as they have been for generations. Telling congress to go back and rewrite the laws, and to specifically rewrite them in a way that is wildly impractical, is simply striking laws from the books that the courts have no authority to actually strike down.
Isn’t this really an argument about delegating authority?
Chevron deference is about congress creating administrative agencies and delegating rule making to those agencies.
There isn’t some separation of powers issue here, the idea is that where congress does legislate and an agency makes a reasonable interpretation of a nuance implicit in the law, these rules carry the weight of the law.
For instance, congress mandates that the EPA enforce clean water standards, and the EPA sets parts per million for various dangerous substances. Would it make sense for congress to have to pass new laws each time a new chemical is introduced to our environment?
In a sane world, if Congress were okay delegating their responsibility, presumably they'd be okay rubber stamping whatever agencies sent their way (with the advantage that they could more thoroughly review something controversial). If they're not okay rubber stamping, then I suppose they weren't actually okay with delegating their responsibility.
Like surely the EPA could send them a 1 sentence bill saying "amend section H paragraph III to add chemical X at 30 ppb", and they could have it passed in a day if they have that trust.
It makes sense if you want to be able to dump new chemicals in the environment and count on your “small government” representatives to do nothing about it.
What do you call Griswold, which found new constitutional rights in “emanations from penumbras” in the constitutional text, if not “shameless?”
By contrast, you’re calling it “shameless” for the Court to decide that the judicial branch should be the final interpreter of statutes, not the executive branch. You’re literally engaging in Orwellian doublespeak.
That's the same kind of argument I'm talking about, though. If you just frame it as "to advance their conservative political goals" then you fail to fully understand this court and will continue to be surprised by what they decide.
This court has more than once ruled in a direction that conservatives would not like because the letter of the law required them to do so. Those instances just fail to make headlines and draw ire on social media.
Yes, it's quite simple. Whatever ruling helps the powerful is the one they make. It's incredibly blatant regardless of recent (post 1980s) manufactured from whole cloth "originalism", which is in sharp contrast with the actual views of the founders who expected the constitution to be rapidly and frequently amended to account for new factors.
> the founders who expected the constitution to be rapidly and frequently amended
Do you have any evidence to support this claim? The Constitution spells out that any amendment requires first an agreement of 2/3s of both houses of Congress and then ratification by 3/4 of the states. Even back when there were 13 states I'm having trouble imagining them setting it up like that if they were targeting rapid and frequent iteration.
If that was their intention they obviously did a very bad job setting it up for that.
Yes anyone who's paid attention knew this was coming. I'm not sure the average American voter understands the consequences of the supreme court veering to the right however
In an ideal world, maybe. In the US, where business mostly already owns government, this decision will further erode the little control citizens have over them.
I think you’re not reading the room on this. There’s a rhyme and reason - this court has decided push an agenda in favor of a particular type of executive power and a dramatic increase in the power of the judiciary.
Judicial review has been the hallmark of judicial power since John Jay. Now, in the name of strict construction, the court has decreed that Federal courts shall be in the middle of routine executive operations. It’s absurd and gross.
Unfortunately, the dire predictions made after citizens united were spot on. A court of craven ideologues, with at least one openly in the pocket of a friendly billionaire, is shifting power to an unaccountable judiciary.
It sucks, we’re witnessing the slow death of the republic.
There’s also a tendency, among those persuaded by particular philosophies of governance, to ignore decades of electoral strategy which has married control over the courts with political priorities where these harms are exactly the desired outcomes. There’s probably a case to be made that the model of governance and the specific political harms are more intrinsically linked than mere strategy. But putting that aside… conservatives writ large are all too eager to abandon that model of governance when it doesn’t have the desired political effect. And it’s easy enough to imagine the conservative movement losing love for even this highly favorable court if certain high profile cases don’t go the way they expect.
They've been very consistent. They ram through whatever the Heritage Foundation (boy, if there was ever a truly evil org with a misleading name) tells them to. That's how they got selected. Heritage literally gave Trump a list of acceptable names, all members.
“There was obviously overlap between the Supreme Court list that Heritage put out, which I compiled and which was available to all the candidates who were running, and the list Donald Trump put out,”
They really are congratulating themselves on Federalist Society's work. Leonard Leo was the one working the list.
Predictable, certainly. Consistent, not so much. They seem to start with a decision and work their way backwards through the reasoning, cherrypicking from a versatile and whimsical set of "principles".
Originalism not cutting it, try textualism, conservatism, or maybe even a little liberalism if you want to spice things up! If none of those are really doing the trick, there's always the "tradition" sledgehammer that you can use for anything you want.
It would be somewhat amusing if Congress took the bait and wrote some legislation telling the Court to get back in its lane. Maybe the majority of justices would actually be okay with that.
SCOTUS is governed by the constitution. All congress has control over is the purse (money paid to the justices), number of justices, and appointment of justices. SCOTUS rules are set out in Article III. If congress wants to change the rules of SCOTUS, they will need to amend the constitution.
Note that congress does have power over all lower federal courts, as they were created by congress. SCOTUS is special here though.
The ability for SCOTUS to rule on Chevron isn't even in the Constitution! Marbury v. Madison was SCOTUS saying "we can overturn your executive and legislative choices" and no one bothered to stop them.
Hell no. I'm just taking issue with the claim that SCOTUS is just "following the constitution". They are actually governed by whatever they say they're governed by. The Roberts Court loves to act they're "textualist" interpreters, but only when it benefits them. They claim stare decisis to avoid overturning precedent, but only if said precedent is something they agree with.
Congress doesn't amend the constitution unilaterally. The best they can do is propose an amendment. Amending the constitution today is effectively impossible.
It seems unpopular to point out this morning, but the vast majority of the power SCOTUS currently exercises is not enumerated anywhere in the Constitution. They gave it to themselves. Congress is by design the most powerful branch of the government and they absolutely can dramatically curtail the power of the judiciary if they want to.
I'd advise the folks who are quick with the downvote button to go learn more about the Constitution and in particular Article III. It is really fascinating and you can go down quite the rabbit hole learning about it.
With a 2/3 majority, Congress has the power to do just about any damned thing they want. They have the power to remove any federal judge they want from the bench, they have the power to remove any SCOTUS judge they want from the bench, they even have the power to determine how many justices will serve on SCOTUS. They just need a 2/3 majority vote (Majority in the House, 2/3 in the Senate).
The Founders new that the buck had to stop somewhere and if mistakes were made, someone had to be able to correct them. That entity is Congress. To keep "hanky panky" out of it, they demanded a 2/3 majority - wisely realizing if you can get 2/3 of Congress to agree on anything, then it's probably something extremely important!
SCOTUS's appellate jurisdiction is subject to "such Exceptions, and under such Regulations as the Congress shall make" (Article III section 2 end of second paragraph) . Congress clearly and explicitly has the right to govern their powers as far as cases like this one go.
Is there a reason you haven't added that to the FAQ yet? I don't know how that guy could have known not to use generated comments unless there was a sticky I missed.
There are lots of established practices or conventions here that haven't been elevated to that level because we don't want to make those lists too long. At a certain point it would start to feel bureaucratic and that would be bad; also, the longer they are the less people will read them. Arguably one can derive 'no generated comments' from what's already there though I agree it's not entirely obvious.
The community has been doing a pretty good job of managing this issue though, so I'm not sure it needs officialization.
This decision conflicts with their decision on the homeless. In one case local laws are enforcible, in the other, we are powerless to regulate. In both cases the balance of power shifts to the party already more powerful. Calling it disingenuous would be charitable.
The media's coverage of this as a "conservative win" is extremely misleading. This case is simply about whether agencies or judges should interpret what federal regulatory statutes mean. Chevron itself was written by five conservatives (and one democrat--with three other justices not participating) and overruled a decision authored by then D.C. Circuit Judge Ruth Bader Ginsberg. She had sided with an environmental advocacy organization in finding that the EPA's interpretation of a Clean Air Act amendment was incorrect.
Chevron has always been a double-edged sword for both conservatives and progressives. In many cases, public interest advocacy organizations would much rather have judges deciding what laws mean than bureaucrats, because agencies tend to be staffed with industry people who are--while well meaning and operating in good faith--often veterans of industry and very sympathetic to it.
What an incredible coincidence that everyone -- the media, the judges who voted 6-3, and HN commenters like yourself -- sees this case along ideological lines!
Every case is obviously going to be viewed through the legal of legal ideology. That’s different from making it seem like it favors one particular political ideology. Liberals hated Chevron because agencies were generally less willing to push the law in their favor than judges. Under this ruling, they can go and sue in the ninth circuit and have liberal judges Decide what the clean air act means.
Amazing how the US approaches Taliban Afghanistan step-by-tiny-step (and sometimes with giant leaps, e.g. by electing Trump). It's incredible (i.e. "too extraordinary and improbable to admit of belief") that about half the country^W voters think that lot is the best to lead their country...
So if I work for the ohhh I dunno department of energy, and im working on rules for, uh, i dunno, radiation exposure. Does this mean that DOE cant what—set legally safe exposure levels? The court has to?
The Court will refer to DoE's definitions/rulemaking. Issue closed.
Now, if DoE started publishing guidelines about the radiation levels in bananas to be marketed in the U.S., the Courts would look at DoE like they have a second head, and tell them Congress never intended for them to govern banana radiation levels. That's the FDA's job.
Now let's make it more interesting. Let's say DoE passes down rulemaking around the how radiation exposure resulting from food intake by Nuclear plant employees gets factored into lifetime exposure, and Dole sues to have their bananas excluded from the calculation.
Under Chevron, check the statute, no mention of banana-ry. Check the agency definitions for reasonability:
Guideline related to management of Energy infra/workers in the United States. Okay. The Government is passing something that applies to all DoE covered workers. Okay. No single entity (purveyor of fruit) is singled out. No invalid statutory constructions were used. Check with FDA for corroborating info. Okay.
Tell Dole DoE's rulemaking request is ultimately reasonable and within scope for fulfilling DoE's narrowly scoped mandate; end of story.
The gist is the Court can't just ignore a request for redress of grievance via deferring to the Executive Agency in question anymore.
Obligatory IANAL. Just my read of the decision. The justices really drilled home on review of administrative law being the job of the courts. Not the Executive.
You can set them. The difference is, if the DOE is sued over that regulation, the court will make it's own judgement as to what the law intended. Should there be radiation exposure rules? If so, what should the levels be? How should they be measured? What is covered by those rules?
The DOE will get its say. But the court would be free to conduct its own research or give whatever weight it wants to the plaintiff's arguments for interpreting the law.
Get ready for the Judicial Branch (especially the Supreme Court) to be in charge of every federal agency going forward. It's going to get real ugly....
There's a tendency among certain people on HN to act like the conservative justices have no rhyme or reason and are just a bull running mindlessly through the china shop breaking precedent at random or specifically to hurt specific groups of people.
I'm not a fan of every ruling that they've made, but this should have come as absolutely no surprise to anyone who's been paying any attention to the arguments that this court has made over and over and over again. Their legal and constitutional philosophy has been very consistent:
They believe that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets them. They believe that the Executive branch and the Judicial branch have been compensating for Congressional failure for too long and they have been very clear that they're intent on undoing that and rolling the system back to how they believe it should be.
There's an argument to be made that this theory is incorrect and/or harmful, but they've been remarkably consistent in applying it. Anyone who's been listening to them saw this coming years ago.
Unless the way elections are handled changes, such as doing anything that selects for expertise instead of partisan hackery, all this is going to do is accelerate the gridlock, corruption, and dysfunction. It just does not logically follow that putting more pressure on the legislative branch to be functional is going to work when its functionality or lack thereof is based largely on a very gerrymandered population being blasted non-stop by a completely co-opted, corrupt media. When the corruption and control is so thoroughly embedded already, the difference between "unelected official" and "party-and-special-interest-approved elected official" becomes a silly fig leaf of a difference.
Institutionally-declared experts are not exactly famous for their lack of partisan hackery, especially not in recent years.
> It just does not logically follow that putting more pressure on the legislative branch to be functional is going to work
You're talking like this is a political tactic or strategy used by the Supreme Court to achieve a specific outcome (which might "work" or "not work"), but it's not. Justices aren't meant to make such plans. They are supposed to do their job. If Congress does or doesn't do theirs, that isn't by itself the Court's problem nor something to which they should be the solution.
But it's also worth remembering that what "works" means varies a lot depending on perspective. There is plenty of stuff that is bipartisan in Congress and which they get done fairly quietly. Additionally, to the school of thought known as libertarianism, Congress not doing things is the desirable outcome and thus a gridlocked Congress is in fact the system working as designed, in the sense that it is being limited by the degree of agreement amongst voters on what it should do.
Hmm well I'm a foreigner so am not really affected by Supreme Court judgements, and I would say that this particular court seems to be doing an unusually good job of just following the law as written regardless of outcome. Certainly it seems true when compared to the supreme court equivalents in most other countries, which are largely a joke.
As an example, the Supreme Court made another judgement this week that has pissed off lots of conservatives: it dismissed a case about social media companies banning political speech about COVID at the behest of the government, on the basis of lack of standing. This was widely seen as a blow against free speech. If you read the judgement though the problem was simply that the people being censored hadn't shown clearly that it was the government doing the censoring vs the social network executives, and were relying on a sort of ambient argument that the government was leaning on the companies in ways that weren't always clear, and so there was a First Amendment violation at one-hop-removed.
The court rejected this reasoning, saying they could only rule on cases where the people doing the appeal could show they had been directly harmed by the government, so they weren't even going to consider the rest of the case. If the Supreme Court were a bunch of conservative activists they wouldn't have done that. They'd have accepted the indirect censorship argument, accepted that the case had standing and then ruled against the federal agencies. And in fact the conservatives I saw talking about it were raging against "technical" judgements that could only be the result of pro-regime bias etc etc. But the judgement seemed logically sound to me. So the idea that the current court is packed with judges abusing process to get specific ideological outcomes looks very wrong.
I never paid attention to Supreme Court rulings before a year or so ago but suddenly it seems like they're all over HN. So this is the first time I've read them. The thing that's really striking is how stupidly obvious all these cases seem to be and how weak the original legal reasoning being overturned was. You can understand the argument within a few pages of reading, usually. Like when Roe v Wade was struck down, all I knew about it was that it was related to legalizing abortion. So naturally I figured it was something to do with abortion law. When it was struck down, I learned for the first time that it actually relied on some convoluted backflips to do with privacy law that had nothing to do with abortion, moreover it seemed almost everyone in the legal profession had always known it was logically dubious and the product of an activist court, etc. It was pretty surprising that such a judgement had survived so long, honestly.
Likewise for this judgement, what they're saying is there's not only the Constitution but also a specific act of Congress which both state that when statutes are ambiguous the courts decide on the correct interpretation. In the original Chevron judgement those laws appear to have been ignored and the courts started letting the executive branch decide what ambiguous law meant. That then became just the way things are done, but the law had never actually been changed to allow that. Once again this judgement seems .... kinda obvious? It's not exactly a complex feat of legal reasoning. The laws says the courts resolve ambiguity, they weren't doing it, now they've been told to do it. End of judgement.
It's quite fascinating how many commenters just assume that if there's a decision they don't like from a court it must be due to bias and corruption. Makes me wonder what they think when there's a decision they do like.
It's part of the polarization of politics over the past few decades where the ends justify the means and the sooner the better. People have given up on understanding underlying principles, let alone believing they are necessary for good long-term outcomes. One can even argue many have given up on the long-term entirely in favour of instant gratification of their demands for societal change .
You can see that even in this very discussion where a substantial fraction of the comments are making claims that this ruling will prevent regulation entirely -- a claim entirely unsupported by the principles in question.
i am sympathetic to desire to change how elections are handled (universal suffrage is a stupid idea without universal risk/ skin in the game, we need a way to make voters universally and roughly equal uncomfortable eith poor fiscal managment so they feel the pian when they vote thwmselves more stuff without also voting in a payment method) but its not happening.
i also think you are mistaking long term corruption and chaos with a normal process in big party system where every several decades the big voting blocks move around and thatparalyzes the politicians until they are sure who their voting blocks are. onve the voting blocks finishmigrating and sort out dominance per party things will go back more towards historical functioninglevels
>we need a way to make voters universally and roughly equal uncomfortable eith poor fiscal managment so they feel the pian when they vote thwmselves more stuff without also voting in a payment method
another small govt ideologue that thinks the US's federal budget works like a household's
>make voters universally and roughly equal uncomfortable eith poor fiscal managment so they feel the pian when they vote thwmselves more stuff without also voting in a payment method)
My idea is to apportion costs to the voter's choices (you want lobster, you pay for lobster), and/or hamstring the ability to move and immediately get access to voting in the new place's elections.
you can read in my other response but the short answer is: post a bond equal to X weeks salary to vote, bond is held for duration of those elected people's time and if they run a deficit the first hit comes off the posted bond before the country starts taking on debt. If you want to vote again next time post more money to top yourself up.
Right now almost everyone gets to vote ( basically if you are a citizen who is over 18 you get to vote in most democracies) but when you look at how the government actually functions a majority of these voters are strongly net beneficiaries of government (through direct and indirect transfers) and have almost no risk from any of their votes because the strongest argument you can make is their taxes may go up but their transfers will likely still cover it and those transfers may be in forms that are less optimal than whatever they were spending that cash on directly before it was taxed away and then transferred back. Its' a very weak claim to having any skin in the game. Even among the minority of people actually paying for all this and not getting it back as transfers, you can make an argument that a subset of those guys are also largely insulated because they are good at getting excess government subsidy for their businesses via lobbying. Overall, there's a very tiny group of people who are experiencing actual costs from the decisions made by voters, which is stupid. Most of the people making the decisions need to have some real exposure to their decisions. I would personally do it by requiring people put up 2 weeks salary as a bond that pays some nominal interest but is stuck for at least the period that that election is valid for and if the people elected run deficits then the deficit is paid for out of the posted salary first prorated so that everyone experiences the same percentage of the pain and has to post the same percentage again at the next election if they want to vote there. You could also solve this by limiting voting to the people actually paying but that's a really bad idea for abuse reasons. Better to keep the voter rolls as broad as possible and just ensure people get a taste of the results of their choices as above (or through some other method, I'm open to ideas).
>Its' a very weak claim to having any skin in the game.
The government is the only entity that can legally take away my liberties, possessions, and life. By falling under its rule, all residents literally have their skins in the game.
Your starting point of money transfers could be read as an argument for better economic equality. If, for a person with a socially necessary and full-time job, taking more in taxes than they receive in benefits will financially ruin them, I won't blame the worker.
>The government is the only entity that can legally take away my liberties, possessions, and life. By falling under its rule, all residents literally have their skins in the game.
No, what that is is a recipe for tyranny of the majority (of weak performers) over the high performers by way of voting for policies that transfer wealth from the guys that got the job done to the guys that didn't. You are conflating the need for a strong constitution limiting government power with the idea that because maybe it's possible for the government to do some bad things to you you should get the right to tell the government to take from others and give to you.
Your second paragraph is just wrong. Money transfers are abusing one group for the benefit of a different group. It's weaponization of the very thing you incorrectly claimed as a reason you should get a vote in your first paragraph. The argument for transfers would be about network effects from the transfer being so great to the payer that they are better off (think providing healthcare has a network effect of healthier workers and customers making the paying business owner better off through increased sales/lower sick costs and other things of this variety) and the argument would be that if they weren't trying to freeload they would do the transfer anyway because it is in their interest. Your second sentence of your wrong second paragraph is wrong in the sense of being nonsensical. if you want to clarify what you mean I can then tell you why it's wrong from a logic perspective (or maybe I will agree with you, I can't tell).
Maybe eliminate secret ballots to do an "if you vote for it/him, you pay for its/his costs" sort of system?
Or keep ballots secret and apportion taxes to districts or counties which vote for increased costs, and have it be sticky on move for 5-10 years. Also prevent new-comers from voting in local elections for a period of up to 5-10 years (while retaining the vote in the previous jurisdiction). All these things add costs to locust electorate and will slow down the californication of the south and midwest as californians continue to flee in droves. It's already causing political havoc in various locales.
Do not vote for garbage politics thus destroying your home, then move to a nice place with opposite politics just to vote your garbage again. You act like chauvinist locust when you do that, moving into new political ecosystems to destroy them into your 'ideal' vision.
If you move from blue to red state because your blue state went to hell, wait 5 or more years to register to vote. I only wish this was law so places like AZ can stay nice with lower crime, castle doctrine, and presumptive consealed carry.
Now to batton down my hatches, I sense a downvote typhoon in the air...
Secret ballot is important to avoid direct reprisal for voting the way you think is correct in the face of social pressure (the classic example is your union or your employer tells you to vote for someone you think is terrible. Without secret ballot you risk losing your livelihood for doing what you think is right) Thus you can only make sure the entire voting group has clear skin in the game and repurcussions from their group action.
forcing tax distribution is a bad idea too because there's lots of stuff it is in my interest to subsidize as a high tax payer in jurisdictions in which I don't vote (the most obvious examples being services around my factories in other states or for my customer base in other states, but there are many many other examples). I also need services in other places that are communal (i.e. I don't need a navy in nebraska but nebraskans sure benefit from the navy protecting the coasts). If you are going to do something like that it's better to clearly define government tasks and then keep levels of government out of tasks that they aren't assigned via a strong constitution.
You don't want to stop people from voting (same deal as why you want people in smaller, efficient companies making up the majority of the economy vs government and other forms of oligopoly) You just want them to experience pain from their bad choices so they are unlikely to do it again or have to really suffer to keep making bad choices so that eventually enough of them stop out that the good choice people shine through. I'm also not willing to claim their politics are garbage enough to want to stop them from voting (even though it looks like garbage to me) because I know I am not smart enough to account for all variables and accounting for all variables, at least enough to have something started to grow rapidly rather than having to start from scratch, is what all this individual freedom is great at. If I was smart enough to account for all variables we would be better government by a dictatorship of me and historically that has never turned out better than democracy on any timeline stretching past a couple rulers (this is also why we should be more agressively breaking up these large oligopolies we have let form since Rhenquist changed the supreme court position in the 70's. They aren't smart enough to have all that power either.
On the other hand, enabling the judicial and executive branch to overcompensate for this disfunction also seems problematic - particularly as the former groups aren’t elected (except for the President, of course).
I think everyone agrees congress being dysfunctional is problematic. The question is if it’s better for the other other branches to pick up the slack or if we should just let the government do nothing
> They believe that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets them. They believe that the Executive branch and the Judicial branch have been compensating for Congressional failure for too long and they have been very clear that they're intent on undoing that and rolling the system back to how they believe it should be.
If Congress wants to delegate authority for micro-managing things to agencies, why shouldn't they be allowed to do so?
> Kagan cited as one example a hypothetical bill to regulate artificial intelligence. Congress, she said, “knows there are going to be gaps because Congress can hardly see a week in the future.” So it would want people “who actually know about AI and are accountable to the political process to make decisions” about artificial intelligence. Courts, she emphasized, “don’t even know what the questions are about AI,” much less the answers.
If Congress doesn't like where an Executive agency is headed they can further change the Act governing it to clarify things. The guardrails can be set that way, and with-in them agencies—generally subject matter experts—can write and refine regulations as they are needed.
The Executive agencies and departments are created by Congress. US regulatory agencies have authority because it was given to them by The People (through their elected representatives).
The Judiciary seems to be limiting the Legislative here. Is there anything in the US Constitution that says Congress cannot delegate?
Congress can still delegate the known unknowns. They can say "because we are not experts in this subject, we delegate to agency X the power to decide whether this should be done in X or Y way"
What they cannot do anymore is delegate unknown unknowns. They cannot leave X and Y unspecified, the executive agencies cannot do things in Z way that Congress didn't enumerate, or α and β way that Congress didn't even conceive.
>If Congress wants to delegate authority for micro-managing things to agencies, why shouldn't they be allowed to do so?
Because the Constitution defined the Legislative branch as the entry point for new laws. Not the Executive. Period. The Legislative branch, with the Power of the Purse, is more than capable of establishing the requisite in-house research apparata to allow the Branch to become quickly read up and fluent on anything. That was the purpose of the Library of Congress, and the Office of Technology Assessment. OTA, in particular, was dismantled by Congress because "why should we have this when all the lobbyists are so well informed anyway". I.e. an act of a group of politicians that should damn well know better than to blindly believe everything they are told/ignore everything they are specifically not told by special interests without corroborating reality first through the exercise of legislative subpoenas.
Congress put it's eyes out in a desperate bid to make it that much easier to be held unaccountable for doing their jobs, necessitating delegation to the Executive, which was far easier to manage dealing with.
>The Executive agencies and departments are created by Congress. US regulatory agencies have authority because it was given to them by The People (through their elected representatives).
Yep. Those Agencies, however, should not be making corpuses of law (Administrative law; but I'll be charitable for argument sake, and grant that Administrative law is a necessary evil).
Notwithstanding the above, the Judiciary damn well shouldn't be ignoring grievance redressing relevant to any Administrative law. The Executive cannot be allowed to be all rolled up in one lawmaker, enforcer, and interpreter of last resort. It completely undermines the principle of seperation of powers.
Does that make life harder? Hell yes. Governing ain't supposed to be easy. It's high demand, high overhead, and wide blast radius at the Federal level. The fact the Legislature has gotten so bad at legislating should be a point of shame on us all.
> Because the Constitution defined the Legislative branch as the entry point for new laws.
And (some) delegation has been found to be Constitutional for (at least) a century:
> Since 1935, the Court has not struck down a delegation to an administrative agency.15 Rather, the Court has approved, without deviation, Congress's ability to delegate power under broad standards.16 The Court has upheld, for example, delegations to administrative agencies to determine excessive profits during wartime,17 to determine unfair and inequitable distribution of voting power among securities holders,18 to fix fair and equitable commodities prices,19 to determine just and reasonable rates,20 and to regulate broadcast licensing as the public interest, convenience, or necessity require.21
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
> more than capable of establishing the requisite in-house research apparata to allow the Branch to become quickly read up and fluent on anything.
Not only can they not “become fluent in anything,” it shifts more power to lobbyists and industry where expertise exists that can draft the language they want with the loopholes they want. The scale of federal governance is literally impossible without the looseness of intent interpretation that can be challenged and validated by the court.
You may as well say we can replace the regulatory bureaucracies with expert systems, because we should be able to predict every possible outcome beforehand and just make a giant if/then out of it.
>Not only can they not “become fluent in anything,” it shifts more power to lobbyists and industry where expertise exists that can draft the language they want with the loopholes they want.
The Office of Technology Assessment was dismantled specifically because it was making it too hard for lobbyists to transparently pull the wool over lawmaker's eyes. Suddenly there was paper trail that the Legislature *knew, or should have known, that lobbyists were feeding Congress a line. OTA's entire job was to issue legislative subpoena's to collect information relative to legislative business.
Congress can literally make itself the single most pre-eminent employer of research staff on the planet, overnight. Do not sit here, and tell me with a straight face, that that is infeasible. The issue is will to govern, and reluctance by moneyed interests to start being questioned back by motivated, competent answer seekers in D.C. they can't legally withhold info from without committing the equivalent of a felony.
>The scale of federal governance is literally impossible without the looseness of intent interpretation that can be challenged and validated by the court.
That (challenging in Court) couldn't happen with Chevron deference in practice. Now it can. Good riddance.
Federal governance is far from impossible to do; and I'd like to know your definition of Federal governance. If it's "I want to pass a controversial law once to get it to stick in all jurisdictions, damn the consequences"; then not only do your complaints fall on unsympathetic ears, but I'd say that's the system working as designed, and Chevron was a step to breaking it worse.
If on the other hand, Federal Governance is "the judicious elevation to the highest level of government/enforcement only those tasks that need to be there irrespective of any individual subjurisdictions, all subject to the constraints of who does what aspect of the job as set forth in the Constitution of the United States"; then we're cool. I feel ya'. Them's the breaks though. And I say that as an ex-civil servant.
Government work is hard, thankless, frustrating, and the most dangerous thing to get fast and loose with.
> The Office of Technology Assessment was dismantled specifically because it was making it too hard for lobbyists to transparently pull the wool over lawmaker's eyes. Suddenly there was paper trail that the Legislature *knew, or should have known, that lobbyists were feeding Congress a line. OTA's entire job was to issue legislative subpoena's to collect information relative to legislative business.
> Congress can literally make itself the single most pre-eminent employer of research staff on the planet, overnight. Do not sit here, and tell me with a straight face, that that is infeasible. The issue is will to govern, and reluctance by moneyed interests to start being questioned back by motivated, competent answer seekers in D.C. they can't legally withhold info from without committing the equivalent of a felony.
And this ruling is going to change this how exactly? It isn't. It is merely going to increase the gap between what is going on in the real world and what is effectively regulated. This is a shift in power from the unelected bureaucracy to the unelected judicial. I'll take the bureaucrats.
> Federal governance is far from impossible to do; and I'd like to know your definition of Federal governance. If it's "I want to pass a controversial law once to get it to stick in all jurisdictions, damn the consequences"; then not only do your complaints fall on unsympathetic ears, but I'd say that's the system working as designed, and Chevron was a step to breaking it worse.
Federal governance includes the need to manage, iterate, and execute on regulation in a world that is far too quickly changing and far too complex for 535 people. There are more decision makers than that in a large tech company.
Congress can delegate authority to the agencies. This ruling just says that they have to explicitly do so instead of chevrons ruling that agencies may interpret ambiguous statutes however they like.
Also, if the commenters here READ the full decision, the court explains the history and its reasoning better than any of us can do here.
That's a common feature of Supreme Court decisions, and I find many Supreme Court decisions to be very interesting reading, including those from past decades.
If you are stating that Heller is specious and a fig leaf, you are arguing from a position of bad faith. You may disagree with the constitutional basis for the decision and wish the second amendment to be abolished, but the decision was well stated and solid.
> You may disagree with the constitutional basis for the decision and wish the second amendment to be abolished, but the decision was well stated and solid.
The decision, as written by the late Scalia, to create an individual right bears no resemblance to any historical or legal precedent. Acting as amateur linguist and etymologist, it is ironic that Scalia, a so-called Originalist, also ignores the original meaning of the terms in the amendment.
This is independent of whether 2A is currently useful, or—even more importantly—whether it was even a good/effective idea in the first place.
> I would point people to the decision itself. This throw0101b is clearly acting in bad faith to anyone happening to read this.
People should read the decision. People should also read the dissent. They should also read commentary on the decision. They should also read the legal and cultural history of 2A.
There's no bad faith in thinking Scalia et al got it wrong.
I understand that one reason for the continuing of Chevron deference is that Congress has been writing laws for the past 4 decades assuming that the agencies can iron out the ambiguities.
I wonder if going forward congress can just try to have those agencies iron out the ambiguities before passing the law? Or is the idea that its impossible to anticipate all possible edge cases and congress wants to let the agency iron out future issue?
> Congress has been writing laws for the past 4 decades assuming that the agencies can iron out the ambiguities
My understanding is that the big problem is that this expectation is implicit.
Congress isn't granting agencies the authority to make determinations as to what falls into a category, for instance. Instead, they're creating a category without further elaboration.
Compare that to 18 USC 921(a)(4)(C), which says in part:
The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 7684(2), 7685, or 7686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.
This explicitly established a process through which the Attorney General may exclude weapons from the "destructive device" category at their discretion.
My understanding is that this would not be impacted by overturning Chevron, as the process was established by Congress explicitly. Hypothetically, if that provision did not exist and the AG unilaterally decided that a weapon that was otherwise included in the category should not be, then that would be an example of executive rulemaking within the bounds of Chevron.
> Or is the idea that its impossible to anticipate all possible edge cases and congress wants to let the agency iron out future issue?
This Plus, it's often a case of Congress kicking the can down the road: Enough votes in Congress might agree that something needs to be done, but they can't come up with agreement on the details — often because of conflicting special-interest (read: donor) lobbying about those details. So the legislators say, in effect, "OK, let's get 'a bill' passed [a minimum viable product, if you will] and let the agencies deal with it. Then later, if a major problem comes up with a particular agency ruling, we can revisit the issue then."
Yes but people who have been listening have also been dreading this coming for years. The fact that they're consistently knocking over shelves doesn't make it better.
We've known that Roe was on the chopping block, but it doesn't make it good law even if it's consistent with the conservative justices' goals.
Like I said, there are legitimate arguments to be made against this change, but a lot of people are quick to assume that the Court is out to get them.
The cases that people would approve of if they heard about them get ignored by social media, instead focusing exclusively on the cases that undo some rights that had been established by judicial or executive precedent. So we end up in a place where a lot of commenters are under the false impression that the Court just hates ___ people, rather than seeing the whole picture of the court systematically rolling back judicial activist rulings and executive rule makings.
I do not understand how you can not see this is an activist court. They have by fiat invented new judicial principles out of thin air: "history and tradition" and "major questions doctrine" come to mind. And they apply these arbitrary principles in a heavy handed, inconsistent and simultaneously predictable way while sanctimoniously acting as though we can't see what they are doing.
The court seems intent on allowing judge shopping conservatives to gut any even mildly inconvenient law.
Going back to a "balance" where judges interpret law and no one else creates massive ambiguity across courts & greatly degrades any ability to govern. That seems to be the fantasy world that some parts of America desire. And that this court is working towards, hard as it can.
It interprets that only the court gets to allow or deny
>Yes but people who have been listening have also been dreading this coming for years.
Why are they dreading this? I find it strange how so many people are upset that the Supreme Court is forcing Congress to do its job, which is pass laws.
But the effect of this ruling will mean that Congress will have to pass an order of magnitude more laws; and there is only so much time for debates (which are required in order to pass laws). Or, executive bodies won't be able to do what is required to keep country wide productivity up.
This is the equivalent of requiring a stand up meeting for every commit to a repo; it's plainly obvious that over time it will kill USA's productivity. This is judicial drag on the economy.
It's worth noting that other comparable countries don't delegate law-making power to the executive in the same way the US does. For example in the UK only Parliament may make laws, the civil service can draft it but that's the limit (post-EU-exit that is, the EU is something else).
There is a concept called a statutory instrument in which the process is optimized by allowing changes to be made to law either by "laying them before" Parliament, in which case only approval or rejection is possible, not amendment. Annulling new regulations in this manner is extremely rare however. Or in some cases it's allowed for the responsible Minister or committee of MPs to make the changes directly, which in practice means they sign off on changes proposed by the civil service. This is usually only the case for very minor changes like updating thresholds, shutting down roads for construction work etc.
Despite the inability of the civil service to directly change the law, the UK is not suffering from a deficit of regulations. So there's no reason in principle it should harm productivity, unless you mean, productivity of the government itself.
As an FYI: Parliamentary governments routinely delegate regulation-making power to the particular Ministries, in exactly the same way as the USA Congress delegates it to executive agencies.
Yes I mentioned SIs already. The powers are technically delegated to a minister not an agency, however, who is (almost always) an elected member of parliament.
It seems like an important distinction that unlike the US their government intentionally collapses if the legislature no longer supports the executive. Given two separate legislatures, the filibuster, the presidential veto , fixed terms, etc. it might just make sense for the US government to work a little differently.
That's not true, negative procedure SIs do not need to be approved. They can only be rejected. Most SIs are negatives, not the positives that you described.
You answered your own question there. Congress should do its job, but as a matter of fact it is not doing its job and it is not going to do its job anytime soon.
The Court might be technically, legally, philosophically correct in removing the inelegant hacks that the previous courts set up to route around the fact that Congress does not do its job. But in the meantime, Congress is still not doing its job.
I'm talking about the "people who have been listening to the court and dreading this". Who are these listeners who remain undefined? Are they congressmembers? Are they pundits?
The obvious example is pro-choice people who wish that Congress would pass a law that favors their position, and have been forced to rely on weird Supreme Court rulings by activist judges instead.
You can argue that the pro-choice people should just accept that Congress does not decide in their favor, that this is a democracy and in a democracy sometimes you lose. But it's not like Congress has decided in favor of their opponents either. They just decide nothing. If Congress actually decided one way or the other then at least people would know where they stand and could stop feeling anxious about it.
Congress is broken and structurally incapable of passing laws under this level of political polarization because there are too many veto points (bicameral legislature, the filibuster, the presidential veto) for any law to get passed even if it's supported by the majority of legislators and the majority of voters.
That's a nice catch 22 they've got there. Congress has been passing laws for decades under the assumption that the Chevron case is settled precedent. Now they're getting rid of it because... Congress needed to instead pass laws completely ignoring the courts ruling?
> Why are they dreading this? I find it strange how so many people are upset that the Supreme Court is forcing Congress to do its job, which is pass laws.
Congress is extremely dysfunctional and won’t be able to keep up. Corporations are going to exploit the lag in rule making by fucking over individuals like you and me. That’s why I’m concerned.
Vesting unreviewable legislative authority in unelected bureaucrats specifically chosen because of their long and close ties to the industries they are meant to regulate is anathema to every tenet of democracy. Good riddance.
Removing Chevron deference moves authority from the administrative agencies to the courts, who are not only also unelected bureaucrats, they are more insulated from democratic forces since they have lifetime appointments. Agency heads are political appointments and change with every president.
I'm probably going to get downvoted to hell for mentioning downvotes, but it's funny to me that when this comment was on the submission for the actual supreme court ruling it ended up pinned to the top with 20+ upvotes, but since the merge with the Axios article it's been steadily ticking down, having lost 18 points in less than an hour.
I don't know if it's brigading or if it says something about the difference between readers of Axios articles and readers of full supreme court rulings.
