Conservative justices seem poised to weaken power of federal agencies | Hacker News Reader

Conservative justices seem poised to weaken power of federal agencies

politico.com

27 pointsmoose_man44 comments

As expected, the Supreme Court is poised to be in charge of every federal agency.

It will be ugly when it happens, and imagine that it will open up a ton of lawsuits across the board in every federal department.

Yeah, even what we can eat will be affected which is surley one of the big ones. It's going to be yet another blow to our democacy surely.

The project of de-governance feels so radically imbalancedly more expedient. Any judge is free to veto governance.

> Any judge is free to veto governance.

That's the teeth in the separation of powers. If you prefer more centralized decision making or a less limited democracy, you probably see that as a bug created by the Constitution.

The executive of the Israeli government believes that this is a bug and is trying to weaken the judicial veto power. Their Supreme Court is 8-7 on the issue, just barely upholding their prerogatives.

https://www.france24.com/en/middle-east/20240107-supreme-cou...

A scenario worth considering before deciding for yourself if Chevron being overturned is entirely bad news: If a would be dictator were elected in the United States, would it be better if the courts had broad power to check the executive branch's actions, or would it be better if the courts' power of review was very limited in scope?

The independent agencies hold incredible powers over American private and economic life[1]. Under the doctrine of Chevron deference, the courts have very limited authority to review the independent agencies' actions. These actions include the exercise of judicial power (via their administrative courts[2]) and de facto legislative power (via their regulatory authorities[3]).

These agencies are housed in the executive branch. There is an argument to be made that the president has full authority and control of the executive[4].

Therefore, it is currently very possible for the president to argue that they have vast legally permitted powers. Or, even more simply, the president could nominate loyalists to oversee the agencies who will follow their instructions, effectuating the same outcome even if the legal argument fails. Overturning Chevron would limit the danger presented by these scenarios by giving the courts greater power to review and overturn the agencies' actions.

It's something to seriously think about when considering whether or not Chevron deference is a good idea. Chevron Deference is also a comparatively new concept (1984[5]), and is much younger than the agencies themselves (many established starting during the New Deal in the 1930s[6]).

Personally, I would suggest that it is generally unwise to leave toys for would be autocrats to play with laying around, even when you have noble goals in mind. And if that's right, overturning Chevron might not be such a bad thing, particularly in the unstable times we find ourselves in, even if it has some undesirable effects.

[1] https://en.wikipedia.org/wiki/Independent_agencies_of_the_Un... [2] https://en.wikipedia.org/wiki/Administrative_law_judge [3] https://en.wikipedia.org/wiki/Rulemaking [4] https://en.wikipedia.org/wiki/Unitary_executive_theory [5] https://en.wikipedia.org/wiki/Chevron_U.S.A.%2C_Inc._v._Natu.... [6] https://en.wikipedia.org/wiki/Independent_agencies_of_the_Un...

I'd pose the question as whether legislature has the power to be deliberately vague with the intent of allowing the executive branch to fill in the details.

That’s not really the question being decided about Chevron, though. That’s a much bigger question about the constitutionality of the independent agencies themselves.

The question at hand in this case is basically whether or not the judiciary should, and can, exercise its power of review over the actions of these agencies.

Right now the Supreme Court has said, in Chevron, that it should not and that lower courts cannot. This may well change in this current case.

From my reading, part of Chevron was about whether Congress had delegated authority to an agency.

> 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.

> The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.

Sort of. My understanding is that courts very much have the power to knock down agencies acting outside of their legislative authority, even under Chevron. That’s not what the debate about Chevron is about.

The debate around Chevron is about the deference that the courts have decided they must give to actions taken by the agencies which are a “reasonable” reading of their enabling statutes. In practice this means that the courts cannot review the vast majority of the actions of agencies, unless those actions are outrageous oversteps of the authority they were granted by Congress.

> If a would be dictator were elected in the United States, would it be better if the courts had broad power to check the executive branch's actions, or would it be better if the courts' power of review was very limited in scope?

That obviously depends: are the judges ideologically friendly toward the wannabe dictator and the dictator's supporters, or toward a large faction of the executive branch that suddenly finds themselves under the rule of a wannabe dictator they may not personally approve?

I mean putting aside the culture war issues, do conservatives just want to enslave the population to corporate overlords and billionaires? They're creating a hellish world for everyone.

Interested in more of your perspective on this. Please expand on your opinion around all conservatives “creating a hellish world for everyone”.

Free market ideas tend to be very short sighted and rely on bodies being on the floor before anything is done.

Ignoring that question entirely; how is this relevant to the situation at hand. Based on the article it seems to me that the court is ready to strike down a provision that lets federal bureacrats essentially legislate without being elected. This is not a question of 'free markets' but of 'democracy'. Who, in a democratic state, or a republic like ours (since I know someone's going to bring it up) has the right and the authority to make rules? Is it only Congress? If so, then the court ought to strike it down. If the bureaucrats ought to be able to participate despite having no public mandate, then the court ought to keep it. Either way, the structure of the economy is pretty irrelevant to this question.

Bureaus of various flavors are delegated their authority by Congress. It was done to let specialists in the various fields make rules according to their domain knowledge. They're not elected so they, theoretically, don't have a political agenda they try and fulfill at the cost of their domain.

And honestly, even if these laws had to be rubber stamped by congress or the judiciary, they would be deferring to the very same specialists.

As an aside, in our Democratic Republic, laws are also created by judges, who are not generally elected into their positions.

The specialists are appointed by the President, a position which is entirely political. Appeasing their political boss is one of the specialists’ job requirements. Why? Because if they don’t they get fired. Presidents from both political parties have gone to court in order to ensure this is so.

Limiting the power vested in the executive branch is a necessary step to keep our three branch system working.

And while common law is created by judges, it is always possible to pass a law that overrides it.

> They're not elected so they, theoretically, don't have a political agenda they try and fulfill at the cost of their domain.

I'm not sure if this is sarcasm.

> And honestly, even if these laws had to be rubber stamped by congress or the judiciary, they would be deferring to the very same specialists.

Sure, but making Congress rubber stamp them means there is oversight from the public. The argument is not 'bureaucrats and technocrats should not be involved in crafting rules', but rather 'Congress should also be involved in crafting rules so that the judiciary is not asked to then comment on those rules'.

> As an aside, in our Democratic Republic, laws are also created by judges, who are not generally elected into their positions.

Laws are not created by judges. This is a major problem which the court is hopefully going to address. Right now, as the article states, they get a lot of cases where they're asked to comment on rules that congress did not pass, and then yes, they start to act like legislators. If they strike this down, then the court will not be asked to legislate so often. Like it or not, a rule backed by an act of congress is much more likely to stand, since the courts are typically reticent to strike down laws passed by Congress itself.

I’m curious: what policies are conservatives implementing that are not about removing protections? I’m genuinely curious, because all I hear about is like loosening child labor laws for factories and butcheries, voting against policies designed to protect women against domestic abuse, etc. Restricting access to certain books, restricting medical decisions of doctors, etc.

Ultimately legal protections are a prevention of something. Many people against some of these things are against the government preventing working/hiring/doing and tend to see the policies as increasing costs for marginal improvement/protection.

Citizen's United is a big one, but there are also rulings labor laws, restricting federal agencies ability to regulate safety. It's so ridiculously skewed. You want to get a look at their logic, they enable states to outlaw abortion and in the same breath they prevent states from regulating guns. There is no principle beyond enabling the powerful to control and exploit as well as perpetuating the culture wars.

I'm not even Conservative (I happily live in a Communist country) but worked as a lawyer in a previous life. Your arguments do not hold water.

[1] Citizen's United has benefitted Democrats more than republicans: https://www.nbcnews.com/politics/2020-election/democrats-use...

[2] The second amendment is a constitutional right. A textualist right wing Supreme Court would outlaw any restriction or regulation on firearms whatsoever. That would be entirely consitutional.

[3] There is no contradiction to the logic you describe. There is constitutional right to keep and bear arms. There is no constitutional right to an abortion. Even the supporters of the outcomes of Roe vs Wade admit it was a lousy opinion (e.g. Ruth Bader Ginsburg: https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...).

If you want to create the right to an abortion, pass a law. If you want to repeal or modify the second amendment, persuade your fellow citizens to pass a constitutional amendment. An actual, activist right wing court could find most of the federal government unconstitutional, using the same logic Alito used in Roe vs Wade.

There are something like 3000 regulations on firearms in the US which the court has found to be consitutional which is debatable. Most of the Federal goverment, especially regulatory agencies are probably unconstitutional. Social security is probably unconstitutional, as it should be relegated to the states. RICO laws are unconstitutional.

If you create rights by judicial fiat, don't be surprised when they are removed by judicical fiat.

[1] It benefited the rich and powerful is what you mean. The fact that donations went more toward Democrats than Republicans doesn't change that. So rich people are trying to control the center left side of politics...this isn't news.

[2] The interpretation of the 2nd Amendment is a modern construct, it became in vogue during the 1980s and 1990s when the NRA and gun manufacturers aligned in right wing politics. The individual right to bear arms in all circumstances didn't exist until then.

[3] There is definitely a contradiction in preventing states from regulating gun control rights (preventing the killing of other people) and enabling states to regulate abortion for the purported purpose of preventing the killing of other people.

[1] I don't know how that's the republican's fault. Again, it's the constitution.

[2] This is entirely incorrect. Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, p. 252. ("Until recently, the Second Amendment was a little-visited area of the Constitution. A two thousand-page commentary on the Constitution put out by the Library of Congress in 1973 has copious annotation for most clauses, but less than a page and a half for the Second Amendment.")

The Tommy guns and explosives used during the gangster wars of the prohibition were almost entirely legally obtained (some were imported from Ireland in exchange for liquor). As a lawyer, what you are saying is literally the opposite of the truth. Until the 1980s, gun rights were understood to be a state's rights issue, and most limitations on the federal level (like in the Dredd Scott decision) were based around the rights of black former slaves to own guns.

[3] There is only a contradiction if you assume that the supreme court only exists to prevent the death of people and the unborn, rather than to enforce the constitution. If there was a constitutional amendment that said that every citizen had to go and kill a Mexican every Wednesday afternoon, it would be the job of the supreme court to enforce that constitutional provision until it was repealed.

The Supreme Court doesn't exist to impose your political views, it exists to impose the constitution. The constitution often produces outcomes that are not in synergy with each other or a broader overall purpose. That is the problem of the legislature and the constitution, not the court.

>[Gorsuch] noted that the two cases pending at the Supreme Court — both of which concern a commercial fishing rule that requires fishermen to pay for regulatory monitors on their boats — led to disparate findings of ambiguity in the lower courts despite a relatively basic question.

It seems pretty reasonable to enforce meaningful laws rather than fall back to "federal agencies can just decide what this law means." Especially when "ambiguity" itself becomes ambiguous.

> putting aside the culture war issues

> conservatives just want to enslave the population to corporate overlords and billionaires

Doesn't seem like you put it aside when you made this comment. Is that really the most charitable way to you can describe 45-50% of your country's citizens?

One could argue Chevron deference undermines judicial oversight, excessively empowers administrative agencies, and shifts interpretive authority from courts to agencies, leading to inconsistent and politically influenced interpretations of statutes.

This implies that courts are not politically influenced and inconsistent themselves.

Highlighted by the fact that this ruling is only up for debate since the political bent of the court has shifted enough to start reversing what has long been precedent from earlier courts with different political sensibilities.

Chevron deference was originally defended by conservatives concerned about judicial activism, particularly wrt liberal judges holding sway over regulatory policy. A cynic would point out conservative enthusiasm for Chevron waxed and waned according to how liberal they perceived the federal courts, and that now that conservatives have an unassailable SCOTUS majority and a solid power base in the circuit courts they're finding intolerable those judicial restraints. But to be fair, the liberal contingent is mirroring the same behavior, becoming defenders of a rule they once opposed.

Should the judicial branch have greater say than a specialist when considering specialist topics?

Such as food safety, medical procedures, drug approvals, thresholds for minimizing the environmental impact of millions of chemicals, aircraft maintenance standards, and thousands of other laws maintained by agencies.

Seems foolish to burden the courts with the additional work when they (should) just defer to the specialists when the topic comes up in court.

>"Should the judicial branch have greater say than a specialist when considering specialist topics?"

Should Congress or the President?

Both of whom also do (or should) defer to specialists. Consultants, lobbyists (not all of which is corrupted by money, though much of it is), hearings, depositions, etc.

Neil deGrasse Tyson, for example, does not testify in front of congress just for the press.

> Both of whom also do (or should) defer to specialists. Consultants, lobbyists (not all of which is corrupted by money, though much of it is), hearings, depositions, etc.

So too does the judiciary, in addition to the same hearings and depositions you reference in other branches:

- https://en.wikipedia.org/wiki/Amicus_curiae

- https://en.wikipedia.org/wiki/Expert_witness

I don't see an issue with this? The Federal government is a massive waste of taxpayer funds that could be far better utilized at state levels, or just simply not collected in the first place.

Ah, the old states rights take.

No, not state's rights. Due process of law and non-delegation are what's being ignored, and in turn, situations where actual harm is being caused without any avenue of redress is commonplace, particularly post PATRIOT Act.

This isn't the 1970s anymore. With the courts holding onto Chevron deference and the reorganization post 9/11 that effectively armed agencies to make them literally judge jury and executioner (not in that order) in some cases, as well as the continued inaction by congress to at least not allow Bivens to be whittled away to nothing, fundamentally what exemplifies agency action is no longer the idealized "do-gooders" but instead, ICE using tactics that would certainly be outside of what's permitted by the police to effectuate rules that it created and interpreted and enforced based on the barest of congressional mandates - and the abdication is on purpose - that results in American citizens being deported with little recourse or redress (provided that they make it back into the US somehow); CBP routinely fails to notify or deliberate skips notification for hearings prior to seizing what it deems contraband - never mind civil forfeiture (which it partakes in certainly), but administrative forfeiture; FDA rubber stamping DEA's requests which has no requirement to take into account any harm DEA's scheduling and enforcement processes may create to ordinary, law-abiding patients, and all this is on the record, whether it be from the inspectors general of the agencies themselves or during the rulemaking process, printed in black letter and online in the federal register. Post PATRIOT Act, DHS effectively is a paramilitary force that only partly answers to any court, and by large acts as enforcement for the executive branch. They do not serve judicial warrants but pretend to do so, use ruses to circumvent the 4th Amendment and refuse to answer FOIA requests, and agents have literally gotten away with murder not because the facts do not support such claims but because of a jurisdictional issue. It enables congress to write the vaguest of laws and let the agencies fill in the blanks as they wish, and they do so with gusto, frequently in ways that make no sense to the ordinary American or even English speaker in their selectiveness and choice of wording to the extent where multiple cases brought by states have litigated the wrong term of art before the process was mooted due to a change of administration. Agencies are frequently putting out non-binding, contradictory guidance on matters of importance, like, say, if crypto is a security. They also ignore parts of black letter law - asylum law has been broadly ignored by the Trump and the first half of the Biden administration, and in fact the distinct impression I get, having litigated such issues against DHS subagencies, is that the administration lacks full understanding of the complexities the agencies have created by themselves when it comes to rulemaking to the extent where terms that have no differentiation in plain English refer to entirely different things on a routine basis and somehow the term "admission" has at least six distinct definitions, sometimes used in conjunction in one paragraph, all of which are terms of art.

I can only comment on the agencies I directly dealt with as an attorney and in the best of times, when the law (or really, custom) is followed correctly, absurdities happen routinely that cause real harm. That's just one agency. The practices of the SEC, FAA, and a myriad of others that are more or less in a state of regulatory capture is frequently written about, but not having direct experience dealing with their homespun processes, feel free to start by perusing each agency's Inspector General Reports to get a sense of the tip of the iceberg. It has nothing to do with states' rights - we are talking about federal agencies, as there is actually recourse and remedies against state agencies, but not against federal agencies. Even if you believe that agencies are all acting on good intentions, it is creating bad - and frequently kafkaesque - outcomes.

Administrative law covers a lot of areas of concern, but it's when agencies, with next to no regard to due process as we ordinarily understand it and acting as brownshirts of whichever administration in power, make a mockery of basic human rights and back it up with loaded guns and pretensions of police, we're in a place that the congress that drafted the Administrative Procedures Act never anticipated and arguably, never intended, yet, here we are. Judicially my interpretation of the constitution is of the kind that believes not in the Borkian judicial restraint (which begs the question why does the court even exist) but an engaged court that is willing to fix things that have gone awry, feel free to label it however you want, as long as I'm grouped in with the pro-immigration anti-nationalist faction.

Having spent four (4) hours on hold with the BATFE yesterday only to be given a robotic answer from a clerk, and told to piss office, I would agree there is room for improvement.

If you need my name and a serial number to tell me “delayed” and no actionable information why not make a form.

The EPA and the FDA ensure that you can't have a state decide that "workers in the sausage" is acceptable, then sell cannibal sausage to states with laws that protect workers and consumers, or to protect you from a state deciding that all of that benzene flowing into the river is YOUR state's problem.

If you can't see this because you believe "why would someone do evil?" Then you are hopelessly naive or intentionally pushing a bad take.

Are you positing that, before the FDA and EPA existed, cannibalism was legal? Or that murder was legal? Because that's an extremely poor argument. Murder has a long history of being illegal in the United States

Quelle Suprise: https://en.m.wikipedia.org/wiki/The_Jungle#Reception

Business bank on ignorance and only nationwide exposure by constant taxpayer-funded monitoring can fix it. See also Boeing.

Agreed, this is great, functioning as designed. Very few things are appropriate at the federal level and states have all the power they need to implement policy for their residents.

With free commerce between the states regulations make more sense defined at the higher level for consistency and because issues like pollution don't care that you've crossed a political boundary. Even if it were devolved to the states how much of that would change because huge states like California already have an outsized impact on products because of their huge market. Devolution would paradoxically lead to even lower political influence than now, what does a politician on the other side of the country or 3 states away upstream of your water supply care about your vote?

Also the devolution back to Congress which is the more likely outcome of this is similarly fraught with issues. We delegated these powers to agencies so that your 1 term state rep didn't need to get involved deciding if 3-Methylbut-3enyl acetate [0] in apple juice is a problem or just comes from squeezing the apples. Congress sets up and defines the boundaries of the agencies and if they over step there are dozens of checks on their power including new laws from Congress.

I much prefer that state of affairs over a geriatric stagnant Congress trying to decide if a new chemical additive is food safe or not.

[0] One of the thousand natural chemicals that sound spooky but are just hard to name because nature doesn't care for our convenience. Taken from the classic Antivaxx vs chemical composition of an apple image.

Imagine trying to run a national business where your state-equivalent of EPA standards changes with every state. It would be worse than the sales tax snafu companies have to navigate today.

One for EPA standards. One for worker's rights. One for workplace safety. One for shipping standards. Repeat ad-nausium.

This is a silly comment as your state-equivalent EPA standards do change with every state. The federal EPA’s standards are a minimum. Many states go above that minimum to varying degrees. California is notorious here: they’re called CalEPA. Same with workplace safety where CalOSHA is significantly more stringent than OSHA.

Not only that, but many laws change from state to state. Can you imagine trying to run a business when employment laws vary state to state? Can you imagine trying to run a business when statutes of limitation vary from state to state? Can you imagine trying to run a business where manufacturer or products liability changes from state to state? No need to imagine: it’s happening every day!

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