Supreme Court overturns 40-year-old "Chevron deference" doctrine
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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.
Congress should get its Act together, but one group acting in responsible is not license for another group to act irresponsible.
Tell me you're not a lawyer without telling me you're not a lawyer.
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.
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.
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).
However, now it's pretty much only Republicans who rely on computer-aided models to gerrymander the districts.
There _are_ Democratic examples, and the worst ones are in Maryland and Illinois. But they pale before the Republican gerrymandering.
Here's a nice overview: https://medium.com/rantt/the-top-10-most-gerrymandered-state...
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.
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.
They already had done that, and they lost two big wave elections. (E.g., Texas redistricted in 2004.)
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.
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.
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).
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.
Did you miss the hundreds of billions of dollars of legislating the Congress did this year?
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.
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
[1] https://en.wikipedia.org/wiki/List_of_acts_of_the_115th_Unit...
[2] https://en.wikipedia.org/wiki/List_of_acts_of_the_116th_Unit...
[3] https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_Unit...
[4] https://en.wikipedia.org/wiki/List_of_acts_of_the_118th_Unit...
That’s a feature, not a bug.
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.
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.
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.
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 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.
That’s democracy.
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.
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.
"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."
You can just say you don’t like democracy.
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.
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.
There are too many regulations.
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.
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.
> 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.
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.
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.
You're assuming a lot more agreement WRT "doing their jobs" than actually exists.
I want X, you want not X. We both want Congress to "do its job", but what, exactly is that job?
Deadlock is when I don't get my way.
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-...
Changing the status quo on a fundamental de facto government structure is not good judiciating.
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.
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.
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.
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.)
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.
Or, if you become less partisan, you may see that it is the right thing for the right reason.
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.
Marbury is an utterly natural consequence of the Supremacy Clause and Article III (and the context of common 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.
No, it’s to decide cases and controversies [1]. Deciding on constitutionality flows from that.
This case, for example, was decided more on the Administrative Procdures Act than on the Constitution.
[1] https://constitution.congress.gov/constitution/article-3/
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.
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.
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.
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.
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.
"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.
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
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.
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.
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.
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
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.
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.
Which is actually possible to do by amending the US Constitution, but good luck with that.
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.
thanks!
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.
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.
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.
> the useless rent seeking politicians and their cronies.
Courts are largely politically appointed. Why are judges necessarily more trustworthy in your opinion?
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.
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.
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.
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
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.
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.
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.
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".
Also worth noting is that the head of the EPA at the time was Anne Gorsuch, mother of Justice Neil Gorsuch.
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.
* https://caselaw.findlaw.com/court/us-supreme-court/23/1.html
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.
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.
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 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.
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.
What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
SCOTUS hasn't had a real originalist in like 200 years.
So we should interpret it based on the things it doesn’t say?
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.
---
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.
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."
"Why, the very idea..."
Plus Marbury is too inside baseball for it to get reversed via constitutional amendment.
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 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.
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.
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.
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.
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.
There is no literal reading of the second amendment that grants gun rights to individuals outside of well regulated militias.
They lied to fucking congress
There hasn’t been a successful nondelegatiom challenge in like a hundred years.
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.
[0] https://www.axios.com/2019/06/01/supreme-court-justices-ideo...
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.
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
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"
https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
If you read the decision on abortion, you will find they spend significant time arguing that stare decisis underpinning Roe v Wade is not valid.
There's no harm from denying somebody an abortion when they're not pregnant.
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.
[1]: https://www.aclu.org/press-releases/supreme-court-issues-dec...
[2]: https://en.wikipedia.org/wiki/Roe_v._Wade#History_of_abortio...
> 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.
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.
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.
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.
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.)
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 hypocrisy is blatant and disgusting.
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
Amy was nominated September 2020
Go ahead and inform the class why we didn't have enough time for the appointment in March but did in September.
LOL. It's like taking someone seriously who wants to build my web stack on fortran.
https://en.wikipedia.org/wiki/List_of_nominations_to_the_Sup...
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.
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).
Feel free to share an example.
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.
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.
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.
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.
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."
Congress can absolutely limit judicial review by statute. (It can’t remove it entirely.)
Such a law would bypass Constitutional Separation of Powers (with limited privileges and immunities) i.e. checks and balances.
Why isn't the investigative/prosecutorial branch distinct from the executive and judicial branches though?
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?
What do you think executing laws means?
[1] https://constitution.congress.gov/constitution/article-3/#ar...
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.
The words “separation of powers” never appear in the Constitution. It’s a phrase used to describe the system that document establishes.
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?
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?
Sorry, it's not your fault either.
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.
(Because they can decide what is constitutional or not)
Edit: I have more questions but for some reason I can't reply to your replies :(
In a well-designed system, both have power over each other. That is certainly true in the United States.
There's throttling to prevent rapid back-and-forth commenting as that can devolve somewhat; might be that. Try clicking the "X minutes ago".
With the current makeup of Congress, it is unlikely so the USSC holds significantly more effective power than if it had a functioning Congress.
The two-thirds threshold you mention is for Congress to propose amendments.
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.
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.
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.
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.
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.
That might violate the 10th Amendment since it wasn't explicitly delegated to the federal government.
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.
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.
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.
Where are the progressive iconoclasts?
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.
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.
> 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?
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.
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.
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.
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.
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.
And the court could simply invent more utter nonsense to toss it out again.
Actually they can't. They can only pass legislation that involves interstate commerce or spending. See https://crsreports.congress.gov/product/pdf/LSB/LSB10787
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?
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."
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.
Are there any checks against this? Or can justices just keep granting themselves more powers and invalidating any restraints?
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?
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.
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.
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.
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).
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."
* https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura...
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).
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.
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.
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.
Funny. Seems like it bent pretty hard in the last election. Why should we only honor the bends to the right?
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.
Can you clarify how these aren’t left/right distinctions?
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.
https://apnews.com/article/supreme-court-public-corruption-b...
> 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.
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.
Looking at a few Supreme Court's rulings, say -
https://en.wikipedia.org/wiki/Bush_v._Gore
https://en.wikipedia.org/wiki/Trump_v._Anderson
- I'd be inclined to say that the Supreme Court's design is to bend the results of every political election to suit their own wishes.
The design that can and has been undermined and bent on partisan lines, because of a dedicated campaign to achieve this very goal?
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).
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".
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.
Used to be, in my opinion. Now I'm not so sure if parties that pursue power uber alles would face any consequences.
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.
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.
You should read the actual opinion, because that's not what happened here.
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?
Does SCOTUS fit into this hypothetical?
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.
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".
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.
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.
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.
It’s unworkable. And that is the goal.
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.
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.
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.
The laws have nothing to do with the legal system? That's a new one.
Thats all people here want. Whatever power it is that you think that agencies should have, try to pass a law to do that first.
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.
Then make a law saying that yes this is ok and good enough.
Problem solved.
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.
Take a look at the recent Murthy verdict and Justice Alito’s dissenting opinion.
The point is to avoid “experts”.
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.
This is not *at all* related to what the Chevron defense is about.
"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.
How is that not a good thing?
Bureaucrats living in fear that the laws they pass might be held up to scrutiny?
That sounds like a good thing!
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.
Good luck with this.
At least these corrupt politicians come to face the music every four years.
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...
> 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.
Yes, absolutely.
Congress can do their job and write the laws instead of delegating their authority to the Executive Branch.
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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.
The actual ruling was NOT an "textualist" interpretation at all.
Here's a summary with the linked ruling in case you're interested:
https://www.scotusblog.com/2024/03/supreme-court-rules-state...
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.
Another is that they're "originalists" in their interpretation. How do their decisions hold up if you apply that perspective?
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."
This “anything not expressly allowed must be forbidden” is the exact opposite of how US law works.
With regards to the Constitution, the 10th Amendment would disagree.
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
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.
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
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.
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.
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.
Well, you're in luck with this court!
> The Roberts Court just decided to increase Congress' workload 100000x
https://news.ycombinator.com/item?id=40823343
meta: this has been one of the most interesting and educational threads in recent times. Three cheers for HN.
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 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.
https://constitution.congress.gov/browse/essay/artIII-S2-C2-...
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.
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.
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.
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.
[1] https://www.businessinsider.com/supreme-court-google-tech-so...
[2] https://www.propublica.org/article/supreme-court-errors-are-...
[3] https://www.vox.com/2014/4/23/5644154/the-supreme-courts-tec...
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.
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.
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.
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, but this is a system where everyone involved is trying to (help their team) win rather than trying to produce generally efficacious policy.
Despite its reputation for not passing any laws, the last session of Congress still passed a fair number of laws: https://legiscan.com/US/legislation/2021?status=passed
(The current one seems to be a fair bit behind, but it is also operating on razor thin vote margins and the session is not over yet).
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.
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.
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.
An abuse of a form doesn't invalidate that form's validity.
I would be logically incoherent to assert that all hamburgers are crap on the basis of having worked at McDonalds for years.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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 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."
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 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.
That has unfortunately proven unworkable.
If Thomas is known for anything on the Court, it's shouting into the void in concurrence or dissent.
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.
Checks and balances is not a one time thing.
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.
~"That's right, I want Congress dead-locked, I don't want any new laws passed!"
- David O. Sacks
That's neither the judiciary's problem nor purview. Its yours (and mine) as voters.
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
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.
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.
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?
Yes, packing the court.
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.
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.
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.
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.
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 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.
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.
https://harvardlawreview.org/forum/vol-136/the-imperial-supr...
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.
Compare and contrast judicial shopping, eg patent disputes filed in the Eastern District of Texas.
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.
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 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.
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.
* https://caselaw.findlaw.com/court/us-supreme-court/23/1.html
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.
This is accelerationist or naive to think this is a good decision.
> 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.
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.
Just your friendly "textualist" wing at work.
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.
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?
I never understood the whole "un-elected officials" argument. How many people should we have on the ballot? 10s of thousands?
Regulatory capture at agency level is way harder to do.
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.
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.
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.
(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)).
(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.
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.
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 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 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.
What would be unreasonable is to give those 3 options to a judge and ask them to do a coin toss on which one is right, and then let it sit that way.
I may be radical in this, but I wish the judiciary could force the legislative branch to decide on what the law they wrote means.
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.
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.
It seems like people don't understand how the system works.
Congress cries about Roe vs. Wade, but the power is entirely in their hands to pass federal law to secure abortion rights.
It's like the police crying that someone should do something about crime.
I think they’re doing ok.
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.
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.
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).
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.
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 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.
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.
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.
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.
I imagine there are some seriously distraught teachers in that state right now.
We are in dark times.
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).
Which is why U.S. foreign adversaries have been actively sowing chaos for a decade.
To be confused about this at this point reveals either profound ignorance or extreme motivated reasoning.
That’s why it’s “not guilty” or “acquitted” as opposed to “innocent”
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.
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.
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.
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."
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]
[1] https://www.ftc.gov/news-events/news/press-releases/2024/04/...
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.
For those in the sway of the Federalist Society, that's a feature, not a bug.
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.
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.
Congress has ultimate authority, period. So the SCOTUS running amok is a very bad look and smell.
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.
https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
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.
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.
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):
https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
The first: https://en.wikipedia.org/wiki/Interstate_Commerce_Commission
Chevron was a failed attempt at knocking that setup down.
The ruling is literally the opposite.
The power is put in the hands of the courts and it is take away from the executive appointed agencies.
Nothing in this decision "guts" the agencies.
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.
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.
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.
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.
> 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.)
[0] https://www.washingtonpost.com/opinions/2023/03/28/danielle-... (cube-root method)
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.
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.
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.
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.
I find it interesting we are discussing a case where precedent was overturned, and you are suggesting precedent will fix something.
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.
If Congress is unhappy with how this plays out, they're completely free to clarify any sections that get challenged.
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.
That’s not constitutional.
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.
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?
The inexorable result of this status quo is corruption and oligarchy.
https://www.upworthy.com/20-years-of-data-reveals-that-congr...
I expect a lot of court shopping to judges in Texas to get favorable result to abscond with any regulatory oversight
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 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.
Worse, in some ways, because there's no real paper trail, such as donations to politicians or PACs.
Yes. Lobbying is already a huge problem. This ruling exclusively makes it worse.
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.
Chevron curtailed this essential power in favor of taking an agency at its word, which is quite a dangerous stance.
Plus centralizing it makes things much more clear and consistent.
Hell, if we just took regulatory agencies and put judges in charge somehow that would be a lot better than chaos mode.
> So agencies will not have any power to actually regulate.
This honestly sounds perfect.
If this is the actual end result of this ruling, we’ll all be in a much much better place.
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.
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.
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.
Congress is.
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.
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.
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.
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.
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.
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.
(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?
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.
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.
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'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.
The couts giving/forcing (back) power to the legislature where laws are supposed to be written, deliberated, and passed is a very good thing.
I think what you’re saying is the equivalent of “just write software without bugs and everything will be fine”
Yeah sure… but easier said than done.
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.
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.
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?
> If this is the actual end result of this ruling, we’ll all be in a much much better place.
There's no way. But, I guess we'll find out. I hope HN is around in 10 years so we can see who is right.
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".
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.
As in the oldest continuously-operating legal systems?
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.
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.
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
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.
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)
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."
This is the goal. Want to pollute? You will soon when the EPA has no teeth.
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.
Also, looking to make good policy is easy.
Not independent agencies [1].
[1] https://en.wikipedia.org/wiki/Independent_agencies_of_the_Un...
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.
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.
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
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.
It’ll work great here too.
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!
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
* https://constitution.findlaw.com/article1/annotation03.html
And from 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.
* https://caselaw.findlaw.com/court/us-supreme-court/23/1.html
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.
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."
* https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura...
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.
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."
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.
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 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.
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.
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.
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.
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.
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.).
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."
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.
They do, but courts judge your case.
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.
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.
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.
What on earth are you talking about?
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.
Also, by and large the vast majority of regulations will stand.
Congress being parsimonious with laws is probably a good thing...read their Stare decisis paragraphs.
Here is the decision for you to read, in case you hadn't yet read it before posting. https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
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.
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.
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.
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So the environmental impacts of this decision are hardly clear cut.
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.
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.
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.
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.
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
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.
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.
* https://constitution.findlaw.com/article1/annotation03.html
It's not a new idea that some ambiguities are left to the Executive to figure out.
The Chevron decision was basically a codification of what had been done for decades before it.
> 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."
* https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
That was in 1984: long past alleged, so-called "the threat of court packing" period.
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.
Zero regulation is what they want.
Removal of regulation while they sit back and reap the cash rewards is precisely the designed outcome.
> 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.”
[0] https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
Even if a new supreme court reverts this decision, now people are going to be concerned about the unpredictability of the Supreme Court.
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?
https://harvardlawreview.org/print/vol-136/standing-in-the-w...
1. https://adfmedialegalfiles.blob.core.windows.net/files/PreEn...
The Supreme Court has been reversing itself since the country's inception. I think we'll survive it making corrections in the future.
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.
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.
What your comment suggests is that there will _never_ be 'solid precedent' which is an inaccurate interpretation.
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.
Under Chevron, agencies themselves were interpreting and re-interpreting statute law as they saw fit, and there was no binding precedent at all.
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.
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.
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).
Unfortunately, neither Santa Claus nor an active and well-functioning legislature seem to be available.
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.
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.
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.
Which is exactly why this is such a terrible decision.
https://en.wikipedia.org/wiki/French_Republics
Admittedly, far more an exception than an ideal to emulate.
The other "typical case" is countries liberated from military occupation...
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.
It is not a good idea to have those agencies roam freely imposing regulation that they might not able to foresee the economic consequences
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.
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.
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.
Yes, and Chevron decided "let's keep it that way". It established SCOTUS precedent for what was already the status quo.
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.
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.
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.
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.
That's not true for judges, so any damage by the Bad Guys lasts longer.
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.
How could they possibly win? They aren't even on the ballot!
That is one way to view it. Another way is that legislation should be left to legislators.
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.
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.
If we wanted “competent governance” we would just have China or Singapore run our country.
But yeah, "opinions are greater than facts" is technically a very democratic way to do things.
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.
Now imagine what unelected government officials who play the revolving doors game with the industry they're supposed to regulate can do.
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.
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.
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.
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.
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?
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.
An EPA employee doesn’t “rule” any more than a congressional staffer or court clerk.
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.
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?
Putting aside personal convenience is fundamental to loving God and neighbor at times.
No, it's fundamental to character. It's not exclusive to religion. That's just part of the myth.
Someone could come up with a definition for each that excludes this need, but that is true of character and any subjective definition.
Mixed fibers, prohibitions against eating pork, tattoos, fully submissive women, uncovered heads, slavery, divorce, etc
Some people actually do attempt to follow some of these things, but there's even contradictory information in the same book!
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.”
This reads like the design of nightmares.
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.
> 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).
> 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.
I doubt there are many left after last night.
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).
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 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.
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.
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.
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’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.
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.
They're going through precedent like cordwood, that's not apolitical by any stretch of the imagination. Don't mistake your politics for neutrality
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?
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.
The part that made Chevron consequential wasn’t recognised at the time.
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.
#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.
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.
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.
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)
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.
The idea of Congress delegating certain powers dates back to 1825:
* https://constitution.findlaw.com/article1/annotation03.html
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.
Never mind that congress appoints the heads of the agencies, writes the laws directing them, and on an annual basis, renews funding for them.
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.
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.
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.
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.
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.
But the fact the state legislature elected the state senators reflects your point that the senate was intended to be more "serious."
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.
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."
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.
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).
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.
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.
The regulation stems from https://en.wikipedia.org/wiki/Magnuson%E2%80%93Stevens_Fishe..., which says things like:
> United States observers required under subsection (h) be permitted to be stationed aboard any such vessel and that all of the costs incurred incident to such sta- tioning, including the costs of data editing and entry and observer monitoring, be paid for, in accordance with such subsection, by the owner or operator of the vessel
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.
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?
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".
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.
How on earth do you come to that conclusion? Nothing stop Congress from leveraging experts in drafting laws.
This simply requires that interpretation of law be done in a clear transparent way (courts), rather than by a nameless, faceless, unelected bureacrat.
How can anyone say "no, I'd rather have some bureaucrat do it"?
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.
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.
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?
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.
They need to do their job.
/s
> Ironically, it was Gorsuch’s mother, former EPA Administrator Anne Gorsuch, who made the decision that the Supreme Court upheld in 1984. [1]
1: https://apnews.com/article/supreme-court-chevron-regulations...
There have been other poorly decided precedents in the past that were later overturned, for example:
Edit: clarification and wording
Would you care to share this evidence?
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.
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.
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...
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
https://www.federalregister.gov/uploads/2011/01/the_rulemaki...
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?
Or you can remember that the Executive Branch's job is to enforce the laws, not write them.
"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."
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.
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.
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"
there's no higher threshold in the US than a US Supreme Court decision
things clearly took a turn for the worse since then in many fundamental ways specific to the progressive "revolutions"
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:
https://en.wikipedia.org/wiki/List_of_acts_of_the_118th_Unit...
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...
- 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.
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.
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.
[1] https://en.wikipedia.org/wiki/Martin%E2%80%93Quinn_score
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.
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.
https://www.americanbar.org/groups/public_education/publicat...
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.
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.
So we live in interesting times. Great.
Don't act like complaints about the courts are just liberal tantrums.
They're not usually so much tantrums as biased, hypocritical argumentation developed backwards to arrive at the politically desired result.
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.
Just because something is a precedent doesn't mean it is good or should continue.
A really really good question. And completely compatible with this ruling.
"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.
(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)
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.
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.
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.
I found his and other interesting facts about USA govt rule making in
Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register Sep 2019
Sounds like green house gases are pollutants.
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.
> 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.
* https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
Some of the back and forth during the trial:
> 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.
* Ibid.
See also perhaps:
* https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
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:
* https://www.scotusblog.com/author/scotusblog/
Some seem to think this is a bit of a 'news dump' and 'DoS of attention':
* https://slate.com/news-and-politics/2024/06/supreme-court-ju...
* https://www.msnbc.com/alex-wagner-tonight/watch/-news-dump-f...
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.
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.
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...
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 […]
* https://www.goodreads.com/work/quotes/56364271-trumpocracy-t...
* https://www.theatlantic.com/politics/archive/2018/01/frum-tr...
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.
If anything the last two elections should have taught everyone the dangers of resting so much power in the hands of a single person.
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.
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?
> 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.
A huge win for democracy and freedom that both major US parties and all citizens should celebrate.
I'm the person who prefers having regulatory bodies handle matters over a dysfunctional and ignorant congress who is political about everything.
How is the supreme court beholden to citizenry? They have life appointments, they're beholden to no one (except exceedingly rich "friends" apparently)
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.
Therefore, when civil servants are put into place from the other side, they can't complain.
I don’t think they lose the right to complain.
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.
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?
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.
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.
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.
Some lawmaker is going to call for dumping all PFAS into the local river for example.
But there's also a revolving door between the regulators and the companies they regulate. Sure, Congress is dysfunctional. But regulators are also flawed.
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.
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.
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.
A huge win for corporations and corporate freedom that one major US party and all shareholders should celebrate.
(edited, originally mistakenly wrote "regulators" can still make laws, which is exactly the wrong thing)
/s
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.
We'll be fine, everyone. Nothing to see here.
FDA can't shut down the factory. It has to take it to court.
A Judge with a JD or a jury of random people will decide if the factory can stay open.
Factory stays open.
Millions of people eat salmonella contaminated food.
Where do you find that the FDA cannot shut them down?
This is not about specific regulations, it's about the authority to write those regulations and where the boundaries are.
Chevron specifically says though that it should be within their authority and reasonable.
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.
This is not the only case which will be brought to this court.
The point is to tie congress up, or make sure legislation passed is pro business.
The courts will defang the agencies. This will get you a repeat of 2008 and the bailout, and the net neutrality bill.
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.
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.
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.
With Chevron deference struck down; it's now possible to even get an Agency's administrative law sanity checked by the Courts.
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.
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.
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.
Delegating goes back to about 1825, and deferring ambiguities to the Executive has precedents to the 1920/30s:
* https://constitution.findlaw.com/article1/annotation03.html
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.
Therefore, what happened before is a reasonable guide to what will happen now.
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?
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 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.
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.
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.
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.
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.
[1]: https://www.commondreams.org/views/2022/07/07/why-neil-gorsu...
[2]: https://casetext.com/case/natural-resources-defense-council-...
[3]: https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
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.
What? 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.
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.
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.
[0]. https://platform.vox.com/wp-content/uploads/sites/2/chorus/u...
[1]. https://www.vox.com/2015/4/23/8485443/polarization-congress-...
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.
I feel like you may not be remembering his presidency properly
We need to amend the constitution to revert what these jurists are doing to destroy our administrative state.
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."
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 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.
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.
Note that congress does have power over all lower federal courts, as they were created by congress. SCOTUS is special here though.
Are you implying the establishment of judicial review was a mistake?
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.
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!
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.
This court is only conservative in their political positions. In their actions they are extreme.
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.
This is at odds to me considering who staffs the federal agencies and subsequently who gets the enforce the laws.
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.
time to just work with the people that understand it, this is what we have for the next few decades
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.
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.
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.
They really are congratulating themselves on Federalist Society's work. Leonard Leo was the one working the list.
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.
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]
[1] https://www.supremecourt.gov/opinions/23pdf/23-108_8n5a.pdf
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."
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.
You also have to look at who controlled the Senate in those years.
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".
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.
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?
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.
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.
As to what corruption will bring: https://www.newyorker.com/magazine/2015/01/19/corruption-rev...
There's also no denying that the alternative party also has its own corruptions, which turn off voters..
Deferring to megacorporations is in fact the outcome here since the justices know Congress will not act.
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.
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.
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.
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.
Sometimes the reasoning is specious and a fig leaf (e.g., Heller); have no idea how good it is here.
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.
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.
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.
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
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.
> Why are they dreading this?
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.
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.
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.
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.
https://www.parliament.uk/about/how/laws/secondary-legislati...
That's the Assume a Can Opener fallacy.
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.
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.
* https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
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?
* https://constitution.findlaw.com/article1/annotation03.html
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.
And that's absurd. Congress should have the ability to do this. If they don't like what an agency is doing, they're perfectly able to amend the law.
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.
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
* https://constitution.findlaw.com/article1/annotation03.html
From the original, unanimous, Chevron ruling:
> 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."
* https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
It is the current reverse that is strange (Chevron was simply a codification of what was already happening for decades).
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.
I think that's the whole point of the Federalist Society's libertarian, small government (except for the military) philosophy.
* https://en.wikipedia.org/wiki/Federalist_Society#Role_in_pre...
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.
> 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.
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?
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."
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.
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.
> 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.
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.
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 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
What does that look like in your mind?
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...
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.
Can you clarify this statement? I don’t understand what you mean.
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.
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).
another small govt ideologue that thinks the US's federal budget works like a household's
This process that you just described is what produced Chevron deference.
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.