Comment by remarkEon | Hacker News Reader

Comment by remarkEon | Hacker News Reader

>The court’s ruling could have ripple effects across the federal government, where agencies frequently use highly trained experts to interpret and implement federal laws.

I'm pretty skeptical that this is true. Who is training them? Training them in what? Reading laws and navigating bureaucracy?

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>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.

I'm not following why Kagan thinks this hypothetical helps her point. People who know about AI and are accountable to the political process are not bureaucrats in the federal agencies just as much as they are not the courts. I'll wait for the audio/transcript to come out because hopefully this is a misrepresentation of her question.

The government hires experts. See the example discussion in the post about regulating AI. Or think about the FDA, in the case of drugs, or the CIA for intelligence, the NSA for security (the A in the last two stands for Agency, which were so far covered by Chevron.)

Sure, no one denies that the government hires experts. The people who have a problem with Chevron deference would question if those "experts" have the ability to make rules outside of what congress actually set out to regulate.

The question in these cases is if those experts can interpret the ambiguity in a statute to make rules that may or may not have actually been the intent of congress. Personally, I think the answer should be "no".

How do you know the intent of congress? Are you going to ask them about every ambiguity in a law? Why shouldn't experts in the relevant areas make their best determination?

Do you have examples you're concerned about where Chevron doctrine is a problem?

Seems strange for these fisherman to sue for relief and suddenly agencies no longer have the ability to interpret the laws that apply to them.

> Why shouldn't experts in the relevant areas make their best determination?

Because experts are often myopic and terrible policy makers. Also experts hired by federal agencies will likely tend to favor interpretations that the agency prefers.

You sound like you have an axe to grind. Can you cite a past real-world example of what you’re saying?

Sure, the ATF allowed "pistol braces" over a decade then suddenly decided they were illegal. The ATF decided they would "reinterpret" very clear definition of what a machine gun was. A person has been put in prison for selling an uncut stencil of an automatic seer (basically a drawing on a metal credit card), which by definition isn't a machine-gun.

https://www.atf.gov/rules-and-regulations/factoring-criteria...

https://www.youtube.com/watch?v=gTIDz8jflZE

https://thedailyrecord.com/2023/08/21/atf-gun-rights-advocat...

The EPA has greatly expanded the definition of wetlands.

https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf

And of course this example being discussed. There are probably many more we haven't heard about. You can agree or disagree with these policies, but they need to be voted on by congress. These agencies seem to be out of control and should be reigned in. Checks and balances are important.

The ATF examples are egregious, they issue letters of determination that pistol braces are permissible for a decade, then rescind and overnight make all buyers felons.

But they are not the only agency that is evil, the CDC asserting the right over all housing in the US to prevent evictions was insane. The FDA not allowing terminal patients who have exhausted all other treatment options to try anything experimental. The list goes on.

If the intent of Congress is clear Congress can simply pass a law to clarify that.

Congress does exist. If an agency is acting against the will of Congress Congress can immediately stop it.

You don’t need courts to come in and tell the agency what Congress means when Congress is right there and meets far more often than the courts and has a much quicker process than the courts, where decisions may go up the court chain all the way up to the supreme court.

>If the intent of Congress is clear Congress can simply pass a law to clarify that. Congress does exist. If an agency is acting against the will of Congress Congress can immediately stop it.

Congress is different every year. The totality of congress members that negotiated and passed the law is likely no longer seated. Also this suggestion completely circumvents presidential veto power. It's also highly prone to abuse.

>You don’t need courts to come in and tell the agency what Congress means when Congress is right there and meets far more often than the courts and has a much quicker process than the courts, where decisions may go up the court chain all the way up to the supreme court.

That's literally what the SCOTUS is for, to interpret laws.

https://www.whitehouse.gov/about-the-white-house/our-governm....

https://www.uscis.gov/sites/default/files/document/flash-car...

See recent agency internal rules that their scientists had to get reports and papers approved by their political administration before publication.

You sound like you have an axe to grind by invoking that accusation against someone else over a common sense statement.

Other commenters posted good responses IMHO. My statement wasn’t due to any particular incident or axe to grind. It’s my observation of groupthink among experts in both sciences and public policy.

Specifically recently I was affected by shortages of stimulant medications for treatment of ADHD. These shortages appeared to be due to secret DEA limits. Generally Americans getting these medications are treated like suspects first and foremost, in part due to the DEAs pressure on pharmacies.

Here’s one of the experts describing it:

> The exact limit for each > pharmacy is kept secret in > order to prevent pharmacists > from gaming the system, > according to Krista Tongring, > leader of the DEA compliance > practice at Guidepost > Solutions and a former agency > attorney.

Note the original problem to be solved was opioid overprescribing. Instead of solving that issue directly the DEA experts decided to restrict all controlled substances with murky limits for unclear reasons. Certainly not to help Americans with ADHD, narcolepsy, anxiety, or a host of other genuine and often debilitating conditions.

The DEA’s only concern is “suspicious orders” and limiting the drugs. Hence a case of one set of experts being myopic in the face of the broader health care system in the US.

https://fortune.com/2023/04/03/xanax-adderall-rules-patients...

Here's the problem:

While many wish to live in some fantasy world (hello Libertarians) in our current system, getting rid of the Chevron doctrine will effectively lead to greatly increased deregulation of industry, which will have many serious undesirable side effects, and which will mainly benefit industry and the wealthy and the expense of ordinary citizens.

It's also impractical. Agencies need the ability to move quickly to deal with new threats and technologies without waiting for a paralyzed congress to pass laws to deal with new or even existing problems. (I assume Congress would speak w experts anyway).

That said, of course, in an ideal world, experts would be heeded and cynical politics would not play a part in science-based policy decisions (e.g. how much PFA to allow in drinking water). But that's not the world we live in. We need regulation and experts and we need to improve on the system we have, but not eliminate the Chevron doctrine.

Chevron is reasonable--even obvious.

This viewpoint is utterly divorced from reality. I recommend you go read Chevron. The case itself was a massive win for deregulation under Reagan, and overturned a D.C. Circuit opinion by Ruth Bader Ginsburg that invalidated an EPA rule loosening environmental protections just because there was a new administration.

What I keep reading is this will lead to greater deregulation overall in practice.

Example: https://www.theverge.com/2024/1/20/24044179/supreme-court-ch...

Another take: https://www.thenation.com/article/society/we-are-witnessing-...

It's interesting to me that you find partisan political op-eds by non-attorneys persuasive on a highly technical legal subject. Not the choice I would have made.

This take is completely wrong. Every quote of the SCOTUS justices is done to make a particular point. I would recommend that you go read Chevron, the amicus briefs, the oral argument, and then do the same for the current cases (there are two) for this round.

> without waiting for a paralyzed congress to pass laws to deal with new or even existing problems

ah yes so all the technocrat experts who are undoubtably part of the revolving door between industry & government should just be policing themselves justified by "emergency" exigencies

why are people so keen to defend regulatory capture as not only inevitable but seemingly good?

while there is always a risk of regulatory capture—which i abhor, the current imperfect system is better than no system.

https://www.thenation.com/article/society/we-are-witnessing-...

Elie Mystal is hardly a reasonable voice, far too politically extremist.

My point is precisely that a regulatory-captured system is far worse than no govt regulatory system (which does not preclude non-govt systems).

The intent of congress should be clear from the laws they write. If laws are ambiguous the doctrine of contra proferentem should be preferred as it is in contract law.

In the constitution, congress is tasked with making laws, not "experts" if there is such a thing. If congress wants expert opinion they can invite them to testify and then write the law instead of this end run around legislating.

> suddenly

That part is completely how the US process works. First, cases rarely make it to the supreme court without being tested here and there before (so, it's not suddenly). Second in the US "someone" has to bring a case but their role is largely a placeholder (a few fishing companies works fine if their case is a clean illustration of the problem). Third this is a major decision - whether to use this way of doing things or that - it was at the time and it is now so yeah if the court changes its mind (which it has to be able to do), then that changes how things work. Nothing extraordinary there but the US system in operation.

>How do you know the intent of congress?

Have you read a bill before? Usually they state this upfront. They often name the bill after the thing they intend to address.

>Are you going to ask them about every ambiguity in a law?

Me personally, no. But people who are affected buy it? Yes. And that is a good thing.

>Why shouldn't experts in the relevant areas make their best determination?

Because, in this country, laws are not made by bureaucrats. Bureaucrats who get appointed by the executive branch, which is elected only once very 4 years. You see where I am going with this.

>Do you have examples you're concerned about where Chevron doctrine is a problem?

The two examples in the linked article are good enough. That you are asking this suggests you haven't read the briefs or listened to oral argument.

>Seems strange for these fisherman to sue for relief and suddenly agencies no longer have the ability to interpret the laws that apply to them.

Literally not what's going on here. If Chevron is torpedoed the agency discretion, that people like for reasons I don't understand, is now at the behest of Congress. If these fishermen win, it means that when congress writes laws they have to actually tell the executive what to do. Which is how it was supposed to be when this country started.

Some people like the idea of unnamed and unaccountable "experts" making their rules for them, but personally I much like the idea of those people not getting too big for their britches.

And the government can present these experts in court, and have them go against the other side's experts. The experts are not going away whichever way is decided.

CIA and NSA, famous success stories of accountability to the political process.

How are the president's nominated and senate confirmed agency heads not accountable to the political process?

Cabinet members at least are, as they can be impeached. GOP House is "trying" to impeach the current Sec of Homeland Security.

Cabinet members and some others can be fired by the president. Those that cannot be fired serve a fixed term when they are appointed by the President and they then have to be confirmed by the Senate.

Government bureaucrats only hire other people who agree with them as that is in the interests of their job security. Shrinking the government is vital to allowing new ideas air to breathe.

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