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.
