Re: Supreme Court's Loper decision: offer some thought someone who has litigated
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In particular, this is the clarification that I was pretty sure was the case but couldn't find a lawyer who'd said so yet:
> None of this means that Congress cannot delegate certain matters to agencies. Indeed, Loper says that Congress can still provide agencies with discretionary authority. But Congress must do so through statutory provisions or language where the best reading of the statute, applying traditional tools of statutory interpretation, is that Congress delegated discretionary authority to the agency, subject to ordinary constitutional constraints. Silence or ambiguity alone no longer requires a court to conclude that Congress delegated authority to an agency.
So many comments on the day of insisted that this meant that Congress would from now on have to spell out every detail of every rule, and if they didn't do that then the district courts would create a hodgepodge of contradictory interpretations that would make interstate commerce impossible.
Yes, there will likely be statutes that need to be rewritten (though, as noted in TFA, not as many as people feared). But they'll need to be rewritten to expressly delegate the authority, not to spell out every rule.
The clearest example of this is the clean air act. The EPA has the authority very clearly spelled out in statute to determine what is and isn't a pollutant and how to restrict it. So why then couldn't they define CO2 as a pollutant and regulate emissions? Because activist judges did not like that. The supreme court reversed those powers granted by congress.
We have multiple recent examples of the supreme court ignoring what the law says because it's inconvenient to their political agendas (For example, the gutting of the voting rights act).
As in, they literally ignored their ruling made just a few years prior because when the EPA called their bluff it would result in an outcome they didn't like.
Heads you lose, tails we win.
[1] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
The case was about the interpretation of 42 USC 7411, which creates an express distinction in how new pollution sources and existing pollution sources are treated.
The Clean Air Act created a fundamental compromise: the EPA could require reasonable emissions control technologies on existing plants, and could require more aggressive pollution control on new plants. In this case, the EPA decided that the power to require emissions control technologies on existing power plants gave it the power to require the entire industry to shut down fossil fuel plants in favor of renewables. That was an obviously stupid interpretation of the statutory language that nobody exercising good faith could seriously credit, and which gutted the statutory compromise in the Clean Air Act.
Imagine Congress passes a social media law, which allows the FCC to require social media companies to implement “reasonable privacy protection technology.” The FCC decides that social media inherently risks privacy, and bans your company from collecting any user data at all. You sue, and the FCC says that banning social media companies is a kind of “reasonable privacy protection technology.” That’s basically what happened in West Virginia v. EPA.
Does congress now need to step in every year to re-approve every law and agency created?
But further, an elephant in the room is the senate which runs completely counter to the american public. It grants extreme representation to the minority of the american public and further enhances that power with the filibuster which allows senators from the least populated states to stop laws passed by the house which more closely represents the general public.
"In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like."
You mean like every Court has done since Wickard v. Filburn?
I dare say it most certainly does get old.
Yes, its definitely not a new issue. Which is why I'm not a fan of the judiciary grabbing so much power for itself, the least representative and least accountable branch of government.
The reason for the doom and gloom is that many of the administrative bodies under attack already have the explicit authority from Congress to do what they do, drafted specifically to satisfy the requirements of the Chevron doctrine...
Indeed, the Loper decision is contrary to the actual U.S. history of federal agencies dating back to the start of the U.S. (Brief history lesson: the U.S. Constitution gave the federal government strong, broad powers after the abysmal failure of the Articles of Confederation demonstrated the abject uselessness of a weak central government. Thus, for the first 2 centuries of U.S. history, powers were assumed to belong to the federal government unless explicitly carved out. Extreme activists like the "Federalist" society have spent the last several decades attempting to return the U.S. to days of the Articles of Confederation.)
Chevron was a huge attack on the power of the federal government but ultimately workable since it just required (broad) delegation. Loper says that broad delegation is no longer sufficient; Congress must now spell out nearly every rule.
Respectfully, this is not history, this is a fiction. The Constitution was designed to be stronger than the Articles of Confederation but it was not intended to assign powers to the federal government by default. On the contrary, the Tenth Amendment to the Constitution (ratified in 1791) uses almost the exact inverse of the language you use to take all powers not explicitly granted the Federal government and grant them instead to the states:
> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The States were sold on the idea that something stronger than the Articles of Confederation was needed but that they would still maintain a large degree of sovereignty. The history of the first two centuries of the US is one where the powers that the states initially retained were gradually moved into the Federal government.
We can debate whether or not that process was a good thing (I think in general it was, with exceptions), but you're arguing from a foundation of an alternate history and I don't really know how to proceed from there.
My evidence is literally several decades of early SCOTUS rulings...
The primacy of the federal government over the states was well established during the lifetime of the Constitution's signers. Chisholm v Georgia (1793), Ware v. Hylton (1796), Martin vs. Hunter's Lessee (1816), McCulloch v Maryland (1819).
uses almost the exact inverse of the language you use to take all powers not explicitly granted the Federal government and grant them instead to the states:
The 10th Amendment was regarded then, as it is now, as a sop to the states to give them the illusion that any "remaining" powers were granted to them.
Any astute lawyer will point out that the Constitution already granted the federal government explicit powers; there were no significant powers left to delegate to states aside from hyper-local matters like policing. And the SCOTUS rulings from the first 50 years of U.S. history back up the understanding that the 10th Amendment didn't actually give the states meaningful powers.
The idea that the 10th Amendment actually granted the states any powers was a fiction first employed by the Southern states to try to secede from the Union, and resurrected a century later by the Federalist Society.
While McCulloch v. Maryland has been used to dramatically extend the powers of the federal government it's not clear that this was the intention at the time. The scope at the time was that the delegation of a specific power to the Federal government implied the delegation of the means to execute that power, which is not the same thing as assigning all powers to the Federal government by default.
While we're citing random Supreme Court cases to try to get a sense for the legal situation in the 1800s, here are some you glossed over:
* Barron v. Baltimore (1833) held that the Bill of Rights could not bind State governments.
* Cooley v. Board of Warrens (1852) held that States can regular interstate commerce as long as they don't conflict with acts of Congress.
* Pollock v. Farmer's Loan & Trust Co. (1895) held that unapportioned income tax was unconstitutional. This had to be fixed with an amendment.
> The idea that the 10th Amendment actually granted the states any powers was a fiction first employed by the Southern states to try to secede from the Union, and resurrected a century later by the Federalist Society.
If this were true then I would be 100% sympathetic to the Southern states who felt they'd had a bait and switch pulled on them. But it's pretty obvious from the primary sources all the way through the civil war that this is not how it was perceived.
That said, it's obvious that you have your history and you won't be separated from it, so I'm going to check out here.
Even with a cherry picked list, you've provided no evidence that the Constitution gave the states any significant power. Indeed, you've grossly misrepresented the only case you could find that even touched upon states powers:
- Cooley v. Warrens does not hold that states can regulate interstate commerce. It rules that they can regulate intrastate commerce that implicates interstate commerce so long as the regulation does not conflict with federal regulations governing that interstate commerce.
I'm going to check out here
That's probably for the best. You wouldn't have won this argument since history isn't on your side.
This case also has nothing to do with what can and cannot be delegated. It is about who resolves ambiguities in the statutory language that delegates that power. One of the crazy things about Chevron, for example, was that courts were required to defer to the agency’s interpretation of its own jurisdiction!
Where Chevron comes into play is usually where Congress was pretty specific, because the statute embodies some sort of legislative compromise. In those cases, Chevron means that agencies can easily undo (in either direction) the legislative compromise Congress created.
I rather enjoy people trying to understand & interpret collaboratively.
I effing hate stuffy neck people berating the hoi poi for daring to communicate. Effing hate this elitist shit smearing attempt to silence people.
I can agree that on second reflection it seems slightly less alarming than Loper initially appeared. But hardly. There are now myriad courts where folks can go judge shop to get the laws spun as they want, which feels like a certain level of chaos, and one to be arbitrated ultimately by politically appointed for life extremist theocratic.
And it's unlikely as hell congress is going to get around to doing shit. There is a full swing de-governance project afoot & the madness-by-design & just sheer incompenent thrashings of a party sure make it seem like nothing can get done. What few institutions congress did have now seem at risk: House Intelligence Committee being filled with far right radicals, Perry & Jackson. I agree dysfunction elsewhere isn't a solid enough motive for shifting power as such, but it just seems so unlikely that courts are at all equipped capable or competent, and much much less able to be impartial or fair, as politically appointed lifelong sole-arbiters of how every agency can act. It seems likely to greatly constrain us.
With Citizens United paving the way for overt corporate influence in elections and this weeks effective legalization of bribery and now the demise of Chevron we are going to be in for a bad time. Regulatory capture will increase. Regulations will be weakened and agencies will be reticent to create new regulations. This Chevron decision by itself is not major or Earht shattering but the environment created by this court coupled with a party that refuses to govern in the interest of the people creates a dire situation.
So every week the boat is operating, is another $3500 in costs added on. This was not something that was in the law, it was decision made by the agency to shift costs off their budget and onto the companies they regulate.
It seems we are inching closer to a world where it would require a constitutional amendment to make traffic laws.
In its ruling on the Cape May fishermen’s case, the First Circuit Court of Appeals in Washington, D.C., “decided that broad ‘necessary and appropriate’ language in the Magnuson-Stevens Act, which governs U.S. fisheries, augmented the agency’s regulatory power,” according to a narrative from the New Civil Liberties Alliance. “It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.”
https://www.nationalfisherman.com/national-international/sup...
Here’s the necessary and proper clause: https://constitution.congress.gov/browse/essay/artI-S8-C18-1....
It’s hard to square “well congress didn’t intend for them to have that power” when they quoted their own damn rules when they wrote the law.
But again, SCOTUS decided Congress doesn’t have that power.
FWIW it says "the Congress shall have power..." not unelected bureaucrats of any stripe. In the event the issue about "unbiased experts" is raised, remember that the case is about "who should pay" not that there should or should not be monitors on the boat.
Incorrect. The law has provisions of this kind of fee for other types of fish, it was silent on herring which these boats were fishing for. Historically, the government had been funding these monitors until budget cuts made no longer possible. So, agency created a rule that since while law says monitors are required and we can't pay for it, the industry must now pay for it. Industry sued and here we are.
This isn’t even an example text vs. spirit. Congress wrote the law to cover this.
Congress could still step in here and just make it clear "All monitors shall be funded by fee set by Government." and party over. I'm not sure why Congress didn't do that originally with this law.
Internet comments have the funniest versions of good and bad faith.
Section A/B/C says these kind of fish boats must be monitored, and fishing boats being monitored will pay for said monitors. Section D says these kinds of fishing boats shall be monitored as well but nothing about who pays for it.
You will find US law RIDDLED with these inconsistencies.
For the rest of us, whether you agree with the outcome of decision or not, it overturns a 40 year old precedent which is:
* old enough that several congresses have had a chance to clarify any older laws and have made new laws with it on the books
* not so old that it's obviously from a different era and doesn't make sense today
* and always icky from a stare decisis perspective
fwiw, from a HN perspective, I'm mostly interested in how the SC works as a process with politics aside.
But I’m curious to understand where this newfound sanctification of precedent comes from. Stare decisis has always been discretionary. The Supreme Court overturned 34 precedents in the 1970s: https://constitution.congress.gov/resources/decisions-overru.... Many of those were 50+ years old. It overturned about two dozen in the 1980s and 1990:. The current Supreme Court has overturned just 10 in 6 years and is on pace to overturn 15-16 over ten years, about the same number as from 2000-2010.
In reality, we are in a period of historically high respect for precedent. So ask yourself why this is suddenly being painted as a period of judicial activism.
The label for what this is called is irrelevant. It’s the consequences of this that matter and the lower courts see where this court is heading and they will rule accordingly. These decisions have been extremely in terms of detriment to the country. This court will not be looked upon favorably in the future.
Looking at the rulings in that table, the main difference that I see between this court and previous courts is that this is the first time that a conservative court has thrown caution to the wind and started overturning what they see as bad precedent. Typically conservative justices have held themselves to a standard that liberal justices did not, and the Trump era definitely ushered in a set of judges that were done with that double standard.
I'm willing to have a conversation about the merits of the individual rulings (there are some I disagree with!), but that's a separate question from whether this court is doing something that hasn't already been the norm for a century or longer.
A case ultimately rooted in the legal theory or “emanations from penumbras” in the Constitution.
> fair share union dues
Forcing government employees to pay dues to a private organization they disagree with politically.
> Chevron
Overturning an earlier case that had ruled in favor of an oil company.
> Citizens United
Held that making a political movie about Hilary Clinton was free speech.
> gutting the Voting Rights Act
Finding that Congress couldn’t impose different voting rights requirements on different states based on a 40 year old formula.
> this week effectively legalizing bribery of government officials
Overturned a conviction for accepting bribes in connection with an official act, where the jury was instructed that it was irrelevant whether the defendant had corrupt intent at the time of the official act.
I don’t know what historians will say about the current Supreme Court. But historians (and journalists) are feelers (in the Meyers Briggs sense), not thinkers. They think in terms of human stories and impacts on people, rather than logical systems. Who cares what feelers think about legal precedents?
> gutting the Voting Rights Act Finding that Congress couldn’t impose different voting rights requirements on different states based on a 40 year old formula.
Another example of disingenuous discourse. Thousands of polling stations have closed in the south as a result of the ruling and those closure occurred in areas to disenfranchise black and other undesirable voters. The Voting Rights Act had become so commonly accepted that it passed Congress on its last passage almost without any nay votes. Even die hard conservatives were caught off guard by the courts ruling.
You are not living in reality with these beliefs of yours.
Assume good faith
Do you think he is immune to making bad faith arguments? That he has argued in good faith in the past does not mean he can’t argue in bad faith in the future.
Dred Scott was just about property rights and how the government shouldn’t be allowed to take your property.
Your suggestion that Dred Scott was “about property rights” and slavery was incidental is blatantly inaccurate. It was a lengthy legal defense of the institution of black slavery as such: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
In your view, what should the Supreme Court have ruled in Citizens United? That movies made through corporate entities aren’t protected by the first amendment?
It is entirely naive to think this of SCOTUS decisions in landmark cases. It is naive to think these 9 people are immune to political considerations of their decisions. It’s the legal equivalent of the story we tell children about Washington chopping down the cherry tree. It’s a feel good notion to think that SCOTUS justices don’t weigh in on larger policy debates and this notion has no basis in reality.
SCOTUS is political institution that weighs in on legal and occasionally political matters. It’s a balancing act they must perform if they wish to preserve the integrity of the institution. When they act as they have in recent years the possibility arises that people lose confidence in it and thus erode its power/prestige.
This is true of all institutions that oversee governance of a nation. When things get too out of balance political forces, sometimes in the form of violence, effect the necessary changes to reach a new equilibrium that the populace is sufficiently satisfied with.
The way you are talking about law bears no resemblance to how law should work. It’s worth zooming out and looking at how constitutional law works in other countries. For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating. For example on Loper: https://balkin.blogspot.com/2023/10/chevron-viewed-from-fran... (“The first point to make here is that in European legal systems, it is the responsibility of the courts to give a definitive interpretation of the law, not the executive, and as a result any such interpretation by the administration (including administrative agencies) is subject to review by courts.”)
Likewise with Dobbs, France’s Macron criticized that decision. But French courts had never recognized some supra-legislative right to abortion, and the European Court of Human Rights had repeatedly declined to overturn Ireland’s and Poland’s abortion bans (despite having a more explicit privacy right to work with).
French courts have similarly refused to intervene to strike down hijab bans. The German high court last year rejected a challenge to Bavaria’s law requiring display of Christian crosses in public buildings. It’s not because those countries don’t have constitutional text that could be interpreted to strike down those laws. It’s because European courts aren’t lawless and for the most part, follow what the law really says instead of distorting it for political considerations.
What you’re advocating for is a departure from international standards that makes us more like a third world country.
This might be the case now but won’t be always true. Any institution has to the capacity to try to go rogue so to speak. I don’t know the power of Germany’s high court or what the limits of their powers are or what sort of political forces are at play that those courts must balance. But those decisions certainly had political considerations behind them.
What you’re advocating for is a departure from international standards that makes us more like a third world country.
That departure happened centuries ago with Marbury v. Madison. Politically motivated rulings have occurred ever since. More so than in most countries.
For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating.
I’m not advocating for this. It’s a fact of what the court is. I’m recognizing human nature and the tendency of how humans sometimes act when too much power is given to too few people. Since Marbury v Madison the court became a political institution. Sometimes as a force for good and sometimes as a force for bad.
For 40 years Congress has written regulations with the knowledge and understanding that Chevron was the standard. Now the Court reverses itself. This has huge implications. The dissenting opinions do a much better job than I can on explaining why this decision is garbage. It is now the case that 40 years of laws need to be rewritten and everyone knows that the Republicans are never going to rewrite legislation that can in any way lower corporate profits.
The legal issue in Citizens United was whether the government could punish a non-profit company for making a movie about Hilary Clinton during election season. During the oral argument, the government’s lawyer admitted that the government’s view of the first amendment would authorize the government to ban books.
Look, I think the Supreme Court has gone too far with the first amendment, like holding that stripping is protected speech and communities cannot shut down strip clubs. But making movies critical of political candidates is clearly within the core of protected speech.
And you can’t get around that by focusing on the corporate issue. If corporations don’t have free speech, then when Trump gets elected again in a few months he can legally require Facebook and Google to show its viewers pro-Trump advertisements.
The only principled way to do what you want is to say that the government can impose certain speech restrictions for the good of society. That’s basically what the Europeans do. But that’s exactly the interpretation that liberals spent the entire 20th century fighting against.
The logic used and the wording of the ruling are what are important in SCOTUS decisions. The impact is what matters and the impact was a massive rise in spending by billionaires. It is a well known phenomenon that spending matters in campaigns and allowing a few people to control an outsized amount of that spending is what Citizens United paved the way for.
https://news.ycombinator.com/item?id=40838536
I think we can both agree that the count of precedents overturned is important, but so is the time something has been established law, as it affects more decisions made by the individuals and the legislature.
> Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U.S. at 828. "[W]hen governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.'" Id. at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.'"
Most of those structural hurdles won't change so the net effect is that instead of the elected administration doing minimal interpretation with judicial checks it will be the unelected and unaccountable judges doing it, usually with years of litigation and potentially years of delay added to any controversial regulation. All of that made worse by the ability to shop for friendly judges (see the absurd mifeprestone case).
We do have some broad limits to delegation and at least one member of the current court (Thomas) has expressed a desire to limit delegation further.
This would be like having a pharma executive claiming that they need to charge so much money for medicine so that pharma companies can justify paying the executives huge bonuses.
But the obvious corollary to that is Congress probably didn’t intend to delegate the power to make a huge change in regulatory policy in ambiguous language, without saying so explicitly.
https://harvardlawreview.org/print/vol-129/major-question-ob...
When Carr (echoing the conservative majority in Loper) claims that Chevron was all but dead already due to MQD, that certainly wasn't the case before 2022. So your pedantic correction is missing the point even if it were textually accurate.