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Comment by persnicker | Hacker News Reader

Just keep in mind that the Chevron case allowed the Customs and Border Protection (CBP) in the United States to literally throw out the US constitution and say that the US constitution does not apply to you or protect you and anyone on the border, because they interpreted the US constitution to mean anyone on US "soil" to mean: not literally on the US "soil", though only once you cross the border. Nice self-serving interpretation.

Source: https://www.aclu.org/documents/constitution-100-mile-border-... - second point above the fold.

Chevron is an American tragedy. It's fixed and should be fixed forever.

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> Just keep in mind that the Chevron case allowed the Customs and Border Protection (CBP) in the United States to literally throw out the US constitution and say that the US constitution does not apply to you or protect you and anyone on the border

No, it did't. The regulations were approved in 1953 and upheld in 1976 ( https://supreme.justia.com/cases/federal/us/428/543/ ), before the Chevron deference.

> Chevron is an American tragedy. It's fixed and should be fixed forever.

Chevron deference is the reason the US works at all. Without it, we'll get back into a morass of endless lawsuits that stop any improvement.

It was never allowed to be challenged post 1984. Searching cellphones and seizures only started in the 2000s. Before 1953 people didn't even need CPB. Your counterpoint is outrageous.

Chevron is from a decision in 1984, so how did it apply in 1976?

Corrected, thank you.

> It was never allowed to be challenged post 1976.

And? How is Chevron deference (from 1984) is to blame?

The case was decided on Constitutional grounds, without any deference needed.

> Searching cellphones and seizures only started in the 2000s.

I'd have been surprised if DOJ started doing cellphone searches in 1953.

> Your counterpoint is outrageous.

You failed to make your point about the border searches. They are not connected to Chevron deference in any way.

> Before 1953 people didn't even need CPB.

Oh, and you are clearly clueless about CBP. Before 2003, its duties were done by the DOJ (INS), and USBP.

USBP existed since 1924, INS since 1933.

> Chevron deference is the reason the US works at all. Without it, we'll get back into a morass of endless lawsuits that stop any improvement.

I'll see you in a few years with the outcome of this prediction, but I'm personally not a big believer in single pillars that hold up entire 350-million person systems. It tends to take quite a few pillars falling out to lead to the kind of chaos you're predicting, even saying that Chevron was a pillar and not just a particular way of doing things.

> It tends to take quite a few pillars falling out to lead to the kind of chaos you're predicting, even saying that Chevron was a pillar and not just a particular way of doing things.

One can say the same of any individual change, but it is hard to look back at recent, oh, I don't know, let's say decades, and to think that they have not represented, for better and for worse, fundamental changes in norms and modes of existence, in the US and worldwide.

Now instead we will have judges deciding between industry paid experts and the regulators over every single regulation like how much poison it's acceptable to pump into water supplies. People with no background in evaluating studies or the subjects at hand are being given the reigns to arbitrate between businesses and the public over extremely technical issues.

And why not? They have background in interpreting the law and in listening to and evaluating expert testimony. Why is direct rule by short-lived experts appointed by an executive who cycles out the rules every four years better than rule by legislation and the interpretation thereof by judges as informed by experts?

Won't it lead to wildly different environmental laws in different states? One state can pump waste it considers safe into a river that is shared with another state who considers that waste harmful? Factories on borders of states can pollute the air in ways they do not agree upon, etc?

In the short term maybe. The whole point is that Congress should actually write the laws they want implemented instead of writing the politically expedient extremely vague thing and just hoping we don't end up with the law changing every four years with the administration.

So how do you get congress to write thousands of such laws yearly which will properly cover every potential outcome for decades?

Our current congress barely passed 27 laws last year.

> how do you get congress to write thousands of such laws yearly which will properly cover every potential outcome for decades?

You don't. You force Congress to obey the Constitution, and if that means the scope of the law has to be drastically scaled back so that Congress can manage it the way the Constitution says it's supposed to, good. We have far too many nanny state laws anyway that do much more harm than good.

This might work if we were still living in the 1700's, where companies were held in check by the communities they served. Today, they're happy to do the bare minimum required (required today, not in the world you're advocating for) to avoid poisoning the air, water, and their customers.

Poisoning the air, water, and customers is bad for business. Companies who actually have to survive in a free market won't do it for that reason. The reason companies do nefarious things is government interference in markets, insulating companies from competition. And then the government tries to "fix" the problems it had itself caused by doing that with further regulations. Which still doesn't really work because of regulatory capture. If companies did nefarious things a lot less in the 1700s, it was because of the absence of government interference with free markets.

> Poisoning the air, water, and customers is bad for business.

Is it? What if your profitability depends on using a polluting substance, like PFAS, and not cleaning up after yourself?

> Companies who actually have to survive in a free market won't do it for that reason.

Bullshit. We have _many_ examples of the opposite. Remember the whole leaded gasoline hearing, for one. Or the resistance to lead and asbestos phaseout.

Moreover, the "free market" _forces_ companies to do that. After all, suppose that you're a responsible company, and you spend money on installing expensive scrubbers for your wastewater to remove PFAS. Your less-responsible competitors will then outcompete you because their product is cheaper-priced.

That's why you need laws that force _everyone_ to become equally less competitive by not poisoning people.

Your theory sounds nice but is not borne out by either basic free market economics or the facts. The reason companies can get away with not being "responsible" is that the market is not free. The government has its thumb on the scale in all kinds of ways. For example, the reason companies can get away with discharging polluting substances like PFAs into the environment is that the government effectively owns the environment, not the people, and the government sucks at protecting what it owns. The government then steps in with further "regulation" to "fix" this problem, but does it badly (regulatory capture is a thing), so that companies aren't actually forced to be "responsible", just to look on paper like they are "responsible" enough to satisfy the regulations.

"Basic free market economics" are a convenient lie to make trying to prognosticate on the economy easier. It's built on a set of flawed axioms based around perfect information, extremely low barriers of entry, long time horizons of investors and capital [0], and ignoring things like natural monopolies and network effects. It's a toy model that doesn't match our experience.

Your environmental example is equally bad even when people have easy direct damages they can show like the Exxon Valdeeze spill the cost of litigation is massively skewed in favor of the company who can afford to drag cases out for a decade or more until the plaintiffs simply run out of money and have to take a smaller settlement. It's even worse with a lot of pollutants where the effect is more minor but drastically worsens a person's life but happens to so many people it's in aggregate a huge cost. Usually those take the form of an increased risk or prevalence of disease and the company gets to argue endlessly about their culpability for poisoning people because it's hard to prove the negative that they wouldn't have gotten cancer/breathing problems/etc in the absence of the pollution...

[0] to allow long term profitable companies to weather short term undercutting by larger companies who can take the losses to kill a competitor for example)

> to allow long term profitable companies to weather short term undercutting by larger companies who can take the losses to kill a competitor

This doesn't work in a free market. Look up David Friedman's discussion in, IIRC, Price Theory of competitors to Standard Oil.

> the Exxon Valdeeze spill

This was a product of ineffective government regulation, not a free market. In a free market Exxon would have been bankrupt after one such spill--and knowing that would be the outcome, they would have taken better steps to prevent it. Similar remarks apply to, for example, the Deepwater Horizon spill.

> the cost of litigation is massively skewed

And why? Because governments made it that way.

I'm struggling to think of a case where the free market came up with an environmentally-friendly solution. Sometimes they jump on a save-the-whales bandwagon in a token sense for additional sales, I guess. The environmentally friendly solution is rarely the most profitable, and if it happens to be, the companies are definitely doing it.

The cheapest way to make things is to hide the waste until it becomes someone else's problem. Look at some of the mining Superfund sites. Are you voting with your dollars by not buying mined products? The company that made the mess you didn't even know about and are now paying for was dissolved years ago.

Or the owner of a gas station lets their tanks rust out causing well water to be ruined in a mile radius. He abandoned the station and moved to another city in shame. And opened another gas station.

It sounds kinda like you're underestimating the lure of the bottom line in the free market.

> I'm struggling to think of a case where the free market came up with an environmentally-friendly solution.

Ronald Coase would beg to differ.

Companies as we currently know them mostly did not exist in the 1700's. Where they did many of the biggest were monopolies granted by the government.

The free market has never existed on a wide scale, so no company currently has to survive in a free market. It is a thought experiment and in practice regulated markets are far superior because the market is a pretty bad governor for society. Further, to have a free market you need perfect transparency, a state which is not realistically possible to begin with but if it were possible would only be achieved through regulation, such as disclosure requirements.

In that free market, by the way, companies absolutely will poison the air and water, in large part because people do not make purchase decisions based on downstream externalities. Even if they did, they won't be able to prove the company poisoned the river and the company won't be breaking any laws so a lot of people will simply allow it to continue. Now if the products themselves were poisonous, it's possible, but historically this just led to merchants moving from town to town to poison new people who hadn't heard of them.

>The reason companies do nefarious things is government interference in markets, insulating companies from competition.

This is so ridiculous I am not sure you're serious now. Are you just trolling?

> The free market has never existed on a wide scale, so no company currently has to survive in a free market.

But...

> This is so ridiculous

It is? Aren't you saying the same thing?

Not at all.

Despite the "state of nature" being theoretical, you wouldn't say that the reason people harm eachother is because of government regulations, would you? Of course you wouldn't, because you can think of a lot of reasons for people to harm eachother absent government regulation.

See? You can say that the complete absence of social structure is a theoretical state and also say that the presence of government and social structure is not the sole cause for conflict.

> the presence of government and social structure is not the sole cause for conflict

First, I didn't say "conflict"; my statement was much more specific. Second, companies are not people. Companies are tools that people use. Some people misuse them.

Perhaps it will help if I rephrase: the reason nefarious people can use companies as tools to do nefarious things on a large scale, the kind of scale that affects a large number of people, is government regulation.

I knew you did not use the word conflict, I did so in an analogy to another philosophical thought experiment called the state of nature. I was trying (and clearly failing, my fault) to illustrate a logic issue you were having; just because we have regulations and companies do nefarious things does not mean that the regulations cause the nefarious things.

>the reason nefarious people can use companies as tools to do nefarious things on a large scale, the kind of scale that affects a large number of people, is government regulation.

You are wrong. Companies do nefarious things on a large scale and would even at peak efficiency in a free market because it is more efficient to cause harm than it is to take steps to prevent it.

Looking back to less regulated times in the US may be illustrative.

When there was no government regulation for river cleanliness, companies routinely polluted the rivers. They did not do this because of the government regulation that, again, did not exist. They did it because it is a lot cheaper to dirty a river than it is to install the mechanisms to keep it clean, and the benefits to the company from keeping the river clean, barring regulatory oversight, do not suffice to balance the scales.

Similarly, in countries with less stringent regulations companies pollute and cause widespread harm.

The acceptable level of pollution in a free-market system is much higher than the desirable level, because until a tipping point where the company's sales are impacted they will continue to pollute. The equilibrium point is lowered through regulation. That's literally what it does.

> Poisoning the air, water, and customers is bad for business.

Since when?

> Since when?

Since as long as people haven't wanted polluted air and water or products with harmful substances in them. "Bad for business" means business in an actual free market, where customers have the final say. In what we have now, government has the final say, and government sucks at actually protecting us from these things. Or haven't you noticed that our air, water, and products still have all sorts of harmful things in them, despite all the government regulation?

Surely you remember what it was like in LA in the 70s compared to now!

> Or haven't you noticed that our air, water, and products still have all sorts of harmful things in them, despite all the government regulation?

Do you twiddle your mustache and snicker maniacally as you think up these specious arguments? Or are you parroting them from those who do?

Since you ask, I actually prefer to breathe heavily and intone "I find your lack of faith disturbing."

Aren't judges appointed by administrations as well? Won't the bias change, but just for longer periods of time? Much like what is happening with these recent decisions?

Would you trust a doctor to execute on a large distributed systems project? If they had some advice from a Meta engineer?

Background in one space does not translate at all. We absolutely do not want judges to be on the same level as experts in any field. They are not, and will never be, equivalent to people who are educated in a given space. People spend years and decades of their lives becoming experts in a given space, they cannot be replaced.

Hear, hear. This is why we need to listen to education expert Betsy DeVos, she knows what's best for our education system. Let her set all the rules.

> They have background in interpreting the law and in listening to and evaluating expert testimony

They don't have expertise in evaluating scientific studies or the fields those studies cover at all. At best they can decide who they believe more and there's an endless well of industry backed experts available to preach the company line. It's also far less predictable because the outcomes will be massively different depending on the judge involved. It'd be circuit split city if all the cases we're going to be filed in the 5th which is wildly pro business.

> short-lived experts appointed by an executive who cycles out the rules every four years

That's not what happens though, the rules are relatively stable and have legislatively required notice and comment periods where industry can challenge and prepare for coming rules. And once in place they generally remain the same because there's the same process for removing the rules as creating them. Congress also has the ultimate power over these as they can directly write new laws addressing over reaches as they find them.

The Supreme Court didn't need a background in programming to decide Google v Oracle. The lawyers arguing before the court weren't programmers either. But you can bet that they were briefed by people who could bridge programming and copyright law.

Oracle v Google was at it's heart just a copyright case with relatively simple facts far from the chore of evaluating if a scientific study has valid evidence for it's claims and conclusions when you've got a bank of experts on either side.

What makes the judges - who are also frequently appointed by an executive and who often hold the position for life regardlesss of their performance - better?

It's not as if judges are bound by expert testimony.

> They have background in interpreting the law and in listening to and evaluating expert testimony.

Listen to one of the Flat Earth videos on Youtube. Flat Earthers have very persuasive arguments, and they can be very personable.

Now imagine that the opposing side is a tongue-tied bureaucrat who is afraid of public speeches. In other words, exactly somebody who would want to work as an expert for a government agency.

And imagine that it's not the Flat Earth that they're discussing, but a boring point about alpha-helixes in peptides, or PFAS in drinking water.

How would it go?

And we don't even have to imagine that. The infamous leaded gasoline hearing in 1925 went exactly like that.

Nothing stops Congress from included in law that the executive branch agency specifically has the authority required to define and enforce specific metrics. The problem Chevron crested was the situation where congress effectively just approves an agency with broad powers to protect the environment, and from there the EPA does basically whatever they want with little to no accountability.

Neither extreme is ideal. What we should really have is congress passing laws that specify scope of authority and agencies that have been granted enough leeway to do the job effectively without having the power to effectively create law completely outside the balance of powers.

This is explicitly not what this ruling means. The Judicial branch will rule is an agency has the power to regulate a limit for X in the water. The limit would still be set by an agency.

They can't be bribed, luckily. They can only be given gifts in thanks for past decisions.

This is, after all, the same forum that predicted the imminent offline-ing of Twitter within a week of the layoffs ~2 years ago, and before that, the lack of federal net neutrality was supposed to be the end of decent internet access.

> I'll see you in a few years with the outcome of this prediction, but I'm personally not a big believer in single pillars that hold up entire 350-million person systems.

Oh, don't worry. Republicans are undermining the other pillars. The judicial system is already strained, and if Trump wins, it'll collapse completely.

And unfortunately, the effects won't be visible immediately. It'll be like the US healthcare system: steadily growing more and more expensive, decade after decade, due to systemic issues.

Just a reminder that as far as Republicans are concerned it's the Democrats who are undermining the pillars that hold up our society. When everyone has a completely different list of those pillars I tend to assume that the system is actually quite resilient.

> the system is actually quite resilient

"Resilient" in the sense of keeping itself going, and the politicians who benefit from it in office, yes. That doesn't mean the government is actually doing a good job at what it's supposed to be doing according to the Constitution.

We the people, on the other hand, I think are indeed much more resilient than the "elites" give us credit for being.

The pillar in question - the judiciary - will be hit pretty hard by the two-hit-combo of the removal of the statue of limitations for challenging regulations, and courts having the burden of going through an entire trial instead of a quick hearing.

Granted, it's not the judiciary who will really suffer, it's the people who use the judiciary as their wait time skyrockets. The pillar might not fall, but people are probably going to fall off of it.

Not all perspectives are equal.

Do you consider a flat earther's perspective to be equal to a scientist's?

I consider any perspective held by approximately 50% of the population to be worth the time it takes for me to understand it and accurately articulate it.

This comment exemplifies the kind of unthinking elitism that landed us with Trump in the first place. You treat half the population of the United States as non-persons whose perspective you can't be bothered to even attempt to understand and then you're surprised when they elect an extreme candidate rather than try to engage with you?

So… Is this your long-winded way of admitting that you would actually entertain a flat earther’s opinion to be equivalent to a scientist’s? Not sure there’s any other way to interpret what you wrote other than you think reality takes a back seat to a popularity contest fueled by lies.

I think that when you disagree with 50% of the population you should at least take the time to actually understand what they believe instead of just inventing your own caricatures. You might actually learn something, and even if your views remain unchanged simple self preservation calls for you to understand the people who are consistently voting out your preferred platform.

Beating a straw man is easy but doesn't accomplish anything.

It wouldn't be a single pillar if Congress functioned but they haven't at least since the 90s and there's little chance of that changing. It will be a huge mess.

Messes tend to beget solutions. My personal theory is it gets messy and then we fix Congress because the bandaid is finally gone.

> fix Congress

We will have to fix the judiciary as well, as they can just undo anything the legislative or executive does through judicial review and activist interpretation. There are no repercussions for doing so, as there are lifetime appointments.

You are both being overly dramatic about this. The system will continue to function and adjustments will be made for the new legal reality.

When any regulation (SCOTUS also removed the statutes of limitations for "new" companies) able to be challenged by a lawsuit in a court, and there are hundreds of thousands of regulations in place, how could the courts keep up? They're somewhat understaffed as it is.

> Chevron deference is the reason the US works at all.

I mean, arguably it worked better during the years before the decision

Not to say that I agree with the recent supreme court decision, but eventually the dust will settle

> I mean, arguably it worked better during the years before the decision

Yeah. Some rivers caught fire here and there, but otherwise it had been OK.

> Chevron deference is the reason the US works at all.

Depends on your definition of "works". It is true that many agencies would find it much harder to fulfill their current functions. But many of those current functions are not things that should be done anyway, at least not by the government.

Also, the entire apparatus of the administrative state, with executive branch agencies issuing regulations that have the force of law, is arguably unconstitutional: Article I of the Constitutions say that all legislative power shall be vested in Congress, and does not allow Congress to delegate it. The justification given by the government, and accepted by the Supreme Court in Hampton Co. v. United States, was that it is ok for Congress to delegate lawmaking to executive branch agencies as long as it gives them an "intelligible principle" to guide them. That is one of many examples of Supreme Court decisions that have no recognizable basis in the Constitution.

The thing is, what you want is WORSE than the current state.

The rule-making process is extremely heavy-weight and slow. On purpose, so the public can comment and challenge the rules at multiple checkpoints. And for most of the routine regular rules (not something "big" like Net Neutrality), the comments are treated seriously.

So now imagine that EVERYTHING has to go through the Congress. Congresscritters don't have expertise or time to evaluate and argue each individual point of regulations. So they'll be bundled into omnibus bills, prepared by shady lobbyist groups. There will be no way for you to influence them, especially if your local Congresscritter is not on the relevant committee.

And again, even with Chevron deference, the Congress can easily override any regulation by passing a law.

> what you want is WORSE than the current state.

No, it isn't, because if Congress is forced to make laws itself, like the Constitution says, it will have to drastically scale back the scope of the laws it makes so it is manageable, and that is a good thing. We have far too many laws as it is. The law needs to be drastically scaled back so it only does what it's supposed to, and is not used, as it is now, as an instrument of ideology and failed social policy.

> No, it isn't, because if Congress is forced to make laws itself, like the Constitution says

Yes, and it can make a law saying: "I delegate the tasks within this area to this agency".

> We have far too many laws as it is

The US actually doesn't have too many Federal laws. Other large countries have a similar number of regulations.

> The law needs to be drastically scaled back so it only does what it's supposed to, and is not used, as it is now, as an instrument of ideology and failed social policy.

Can you provide examples of that? Most of the current laws deal with mundane rules and regulation. Like food safety or construction standards.

> it can make a law saying: "I delegate the tasks within this area to this agency".

No, it can't. Article I of the Constitution says that all legislative power is vested in Congress. It does not allow Congress to delegate anything that involves making laws. Agency regulations have the force of law, so they are laws as far as the Constitution is concerned, and are supposed to be passed by Congress according to the process given in the Constitution.

> Other large countries have a similar number of regulations.

That just means other countries also have too many laws. But more than that, if other countries want to have too many laws, that's their problem. They don't have the same Constitution the US does. The US Constitution was intended for a country that did not want a large body of Federal law micromanaging all aspects of people's lives.

> Can you provide examples of that? Most of the current laws deal with mundane rules and regulation. Like food safety or construction standards.

Food safety and construction standards are examples of ideology and failed social policy. The fact that we all want our food to be safe and construction to be done properly does not mean the government should be making the detailed rules for how those things are done; but our government has chosen to do it anyway because of ideology and failed social policy. In fact having the government do these things is a detriment to those goals, not a help. We have huge factory farms pumping food animals full of antibiotics because of government regulations that favor that kind of farming, not because it makes our food safer; it actually makes our food less safe, but government food safety inspectors watch it happen all the time and do nothing. We have a construction industry full of outdated building techniques and with costs much higher than they need to be because of government regulations that favor builders over their customers and discourage innovations.

> It does not allow Congress to delegate anything that involves making laws.

Can you cite that article?

> That just means other countries also have too many laws.

Yeah. And only free-market fundamentalists know better. And when somebody points out the consequences of their actions, they always tell that the consequences are caused by "the government". And that it was not a true free market, because the True Free Market is (by definition!) always perfect.

Examples: historical USA, China during 2000-2020-s, Africa right now.

> Food safety and construction standards are examples of ideology and failed social policy.

Yeah. No.

> We have a construction industry full of outdated building techniques and with costs much higher than they need to be because of government regulations that favor builders over their customers and discourage innovations.

You know, here's an anecdote for you. Wood-frame houses in Russia are almost impossible to sell, even though they are cheaper and better than houses constructed from concrete blocks. Do you know why?

Because you can't easily inspect the quality of construction, as all the critical elements are hidden inside the walls. And there are no mandatory state inspections of houses in Russia, so anyone can build houses however they want. And wood-frame houses are often built by companies that are straightforwardly incompetent and/or cut corners during the construction.

The end result? People are spending more money to be sure that their house does not rot in 3 years due to incorrectly installed insulation.

Article I: "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." No delegation anywhere.

It does not prohibit delegation. For example, there's no article saying that the lawmakers don't have to write laws in their blood, either.

> We have far too many laws as it is

If we could count on companies to act at all for ends other than short term profits maybe we could have less but alas that's far from the case and we have endless examples of what happens the moment they find a way to rack up massive short term profits because a regulation has been loosened because "well we haven't had that kind of failure in decades!".

We know what companies will do without laws around worker rights and safety protections. We know what they do without food safety rules. We know what they do without any anti-monopoly laws (and they're redoing it now under the toothless version we've been gifted by the courts). It's all bad for anyone except the owners and bosses.

> If we could count on companies to act at all for ends other than short term profits

We can for many companies, because many companies are small businesses that are run by their actual owners, who have an incentive to think long term.

The companies for which we can't are companies who are run by non-owners and whose owners--the shareholders--have little or no effective control. Such companies generally would not exist in an actual free market, because they are so inefficient. They exist in our current society because of the huge costs of compliance with government regulations, which protects very large companies from competition, particularly if they can get into the business of being government contractors, as most of them do.

> We know what companies will do without laws around worker rights and safety protections. We know what they do without food safety rules.

We do know these things, but what we know is not what you are implying. The narrative that big bad companies in a free market do all these bad things is a myth. The companies that did them were only able to do them because they were propped up by governments and insulated from competition. For example, the coal companies that exploited miners had exclusive mining rights granted by governments. The railroad companies that exploited workers had exclusive rights to key railroad routes granted by governments.

> We know what they do without any anti-monopoly laws

Yes, we know that too: they provide products and services of higher quality, and a lower price, than their competitors. Then their competitors complain to the government about anti-trust violations and the government breaks up the companies, resulting in higher prices and lower quality products and services.

In cases where there actually is an argument for the "monopoly" company serving customers badly--for example, Microsoft--the government does not break the company up for anti-trust violations. Instead it does some show lawsuits that have no real impact.

> Such companies generally would not exist in an actual free market, because they are so inefficient.

You clearly have not studied the history.

You are arguing for a less effective state though. At some point you have to accept that if we follow the constitution to a T it will lead to measurably bad outcomes that we ought to attempt to avoid. Constitutional amendments are impossible due to tribalism, passing laws is next to impossible because congress is broken. Our options are “corporations write all regulations” or “we stretch the constitution so that experts can write sensible rules”

> You are arguing for a less effective state though.

Less effective at messing things up, yes. You left out an alternative: corporations don't get government favors so they actually have to satisfy customers to stay in business.

When have consumers ever cared about the externalities of the products they consume? You think that if a company starts polluting a river somewhere that will make a material difference to their business if the government couldn’t step in to stop them? Honestly I’m pretty sure that’d be good for sales sinxe they can offer the product at a lower price since they don’t need to clean up after themselves.

The government needs to be able to solve market failures in a timely manner.

What makes you so confident that were always going to be better off allowing the executive branch to functionally define law?

The Chevron deference has always seemed to me to be a workaround when the balance of powers is inconvenient. Congress can avoid debating and voting on a bill and the executive branch gets to effectively write law without legislating it through an elected congress.

> Chevron deference is the reason the US works at all.

A judicial doctrine concocted by conservatives in 1984 so that the Reagan administration could let an oil company pollute more is “the reason the US works at all”?

A more liberal Supreme Court might have sided with the environmentalists and upheld the decision below (written by none other than the notorious RBG-she hadn’t been elevated to the Supreme Court yet). It’s a good thing that didn’t happen, because then the US would have stopped working

> Chevron deference is the reason the US works at all.

That's not really true; the US--including a generally modern administrative state--worked "at all" when Skidmore deference (which existed before Chevron and applied with wider scope) was the only form of deference to administrative agencies required by Supreme Court preference. Leaving aside the question of whether it is legally correct, overturning Chevron is not apocalyptic, and it is also relatively easily reversible, since it was not a decision about the Constitutional separation of powers but the interpretation of the Administrative Procedure Act. It can be, to the extent necessary, undone by statute, either specific grants to specific agencies regarding specific laws or broadly by amending or superceding the relevant provisions of the APA.

Loper Bright moves more power to the (lower, obviously, as the Supreme Court could always do what it did there) courts than they had under Chevron, and it will increase uncertainty, litigation risk, and the degree to which -- as a direct consequence -- wealthy interests are inherently favored by the cost of resolving disputes in a wide range of areas until and unless legislative changes are made. But it isn't apocalyptic on its own.

(Obviously, it increases the cost of Congressional dysfunction, though, which has been a serious problem recently.)

That doesn't sound right. Chevron doesn't mean the government can do whatever they want - the court always has the authority to step in and say "Hey, that's unconstitutional," when it is actually unconstitutional.

There was a presumption that the government is right, so the application of the law was not impartial.

That is absolutely not what chevron was.

Chevron was essentially the decision that an agency established by congress to make rules for a domain had rulemaking powers for that domain so long as it doesn't go against express congressional decisions.

When Chevron was active you could not challenge the US constitution not applying to border patrol because of Chevron. This is literally the CPBs only line of defense.

In the next year I would imagine there will be a movement to overturn what the CPB has done.

> When Chevron as active you could not challenge the US constitution not applying to border patrol because of Chevron.

Do you have one source for this? A case where someone tried, or a blog post by a legal expert discussing this?

If a law could be challenged, but a regulation based on that law can't be challenged, then that's a problem and we should get rid of that specific issue. But that's not the main point of Chevron and doesn't require overturning the entire thing.

Can you cite any case that proves this bizarre interpretation? Has the CBP ever been challenged on its practices, and have the case rest on Chevron deference?

As others keep explaining, the Chevron deference never allowed agencies to defy the law. It merely allowed them to have the final word on how an ambiguous law that applied to them should be interpreted. For example, if Congress passed a law saying "there shouldn't be poison in the water", the EPA would have the final word on whether a particular pesticide at a particular level constitutes "poison". A company couldn't sue and say "we think this is actually harmless". But the EPA couldn't say "this law authorizes us to hang anyone that puts poison in water" and get away with it through Chevron deference.

Theoretically maybe, but I find it difficult the believe that a conservative court will do anything to liberalize border policing. More likely they will find/invent some new justification to allow it, possibly requiring even tougher policing.

Chevron deference has little to nothing to do with constitutionality. It is a principle that says when Congress makes (ambiguous) laws and executive bodies interpret them according to their best judgment (having come to that judgment through an orderly and open process) the judiciary will defer to that executive body's judgment that they are following congressional intent.

If something CBP does is challenged on its constitutionality the court doesn't need to go to Chevron, it will say that the enabling legislation is unconstitutional.

Right. Chevron was about letting agencies help interpret ambiguous statutes that delegate authority from Congress to an agency.

But by definition, Congress can't delegate authority it doesn't have. In particular, Congress doesn't have the authority to transgress the Constitution.

So there's no question of whether the statute permits the agency to transgress the Constitution. It never does and never can. Even if the law said "Congress authorizes the CBP to violate the Constitutition," the agency would still not be authorized to violate the Constitution.

This suggests that overturning Chevron will not have any meaningful effect on CBP policies. They are already overtly illegal with no consequences.

I love seeing new accounts pop up that only seem to exist to support specific SCOTUS decisions with misleading claims like this one.

If it's so misleading then explain why.

There is nothing about Chevron that says an agency can decide when the constitution applies.

"The U.S. Supreme Court on Wednesday made it nearly impossible for Americans to sue federal law enforcement officers who violate their constitutional rights, further narrowing the already limited path to hold U.S. officials accountable for even egregious misuse of their authority."

Source: https://www.reuters.com/legal/government/us-supreme-court-in...

This cannot be challenged because Chevron was in place. I would imagine it will now be challenged.

> This cannot be challenged because Chevron was in place

Respectfully, language like this makes you look very partisan. Of course it could be challenged. How do you think Chevron got thrown out? Because something concerning it was challenged.

Still, it doesn't support your claim that Chevron means that an agency can interpret the constitution. That's not at all what Chevron says and it isn't true.

>This cannot be challenged because Chevron was in place.

That's just not correct.

Nothing at all in that decision has anything to do with Chevron. It's in fact almost the exact opposite of that: the Supreme Court has ruled that Congress has the final say on CBP's behavior, judges must defer to Congress.

Even if the law is a bit hard to understand, it's beyond obvious that the current Supreme Court, the same court that ruled on both of these decisions, intends for federal law enforcement officers to be immune from the law, while agencies are not able to make any decision beyond what Congress says. So the CBP, or at least its officers, will be even more powerful, while the EPA and FDA and FAA and FCC will be almost unable to do anything.

The regulations establishing the 100-mile border zone were adopted by the U.S. Department of Justice in 1953

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

This recent change in the supreme court was made with the intent of letting huge corporations bully the EPA and the like. It will not help anyone at the border being bullied by law enforcement.

> to literally throw out the US constitution and say that the US constitution does not apply to you or protect you and anyone on the border

That's not what the source you give says. It says the Fourth Amendment's prohibitions on searches and seizures do not fully apply at the borders. And even that is a questionable description of the actual state of the law. The Fourth Amendment prohibits "unreasonable" searches and seizures; the actual state of the law is that searches and seizures at the border for the purpose of preventing contraband from entering the country are not considered unreasonable, so the Fourth Amendment does not prohibit them.

And, as another response to you pointed out, all this was the state of the law before the Chevron case even began, so whatever issues you might have with it cannot be due to Chevron deference. Indeed, much of the state of the law is due to court rulings, not agency findings, so Chevron would not apply to it even if it had been decided earlier.

This is the first credible defence of the decision I have read. Do you know of any other examples?

It's not credible.

The Chevron decision was only from 1984. Many red and blue states had already determined it wasn't appropriate at the state supreme court level. This is a decent overview from last year.

https://reason.com/volokh/2023/03/28/ending-chevron-deferenc...

The comment to your reply seems like the opposite of a credible defense. Was it edited in the interim between this comment and your reply?

Chevron allowed massive regulatory changes whenever a new administration took over. At a time of high political polarization, no one should be asking that we defer to the whatever the current executive branch’s interpretation of the law is.

You may agree with the current President’s politics, but chances are you won’t agree with the next one’s.

https://www.yalejreg.com/nc/chevron-deference-vs-steady-admi...

That's more credible than the original point persnicker tried. And it's especially appropriate given the stated intention of the GOP to usher in an era where the entire bureaucracy of the federal government shifts to match the political ideology of the newly elected president. If that comes to pass, it will be an amazing back-and-forth switch every few years. Institutional inertia seems preferable in comparison.

> stated intention

Namely, Republican efforts to dramatically increase the scope of government employees that a president can appoint and fire on a whim. Basically a move towards the "spoils system" of rewarding political allies and donors with powerful or lucrative jobs.

https://www.citizensforethics.org/news/analysis/faq-the-cons...

It's fascinating to read the platform; there is the unspoken assumption that they will be installing all of these partisan bureaucrats that can keep on pushing their ideology even when their guy isn't president. As if it won't just be that each incoming president instantly fires every last one of them and then spends their entire term trying to fill those positions. Perhaps paralysis IS the point.

It's not as if judges are any more or less political. They're also not elected in most cases.

It's pretty easy for a company to pick a court district which will be favorable to them, regardless of the experts brought in.

George Will has an excellent article that defends the decision

https://www.washingtonpost.com/opinions/2024/07/10/supreme-c...

And a slightly older article (before the decision) hoping that it would turn out the way that it did:

https://www.washingtonpost.com/opinions/2024/01/12/chevron-d...

Can you substantiate this claim?

> When Chevron as active you could not challenge the US constitution not applying to border patrol because of Chevron. This is literally the CPBs only line of defense.

Specifically that Chevron enables this - I don't see how Chevron applies here.

No it didn't. This is another nonsense defense of an extreme activist conservative court just like when they decided to take away people's rights to choose solely didn't like Abortion without any reason (Roe vs Wades logic hasn't changed, merely the number of exteemly conservative judges on the court). They don't like regulations so they'll blow up the ways regulations have worked even though it will make a huge mess and overload the already way too busy courts.

Oh, really? So now it is not the case at all?

I haven't heard anything from CBP, so we can all guess your "fact" is disingenuous...

(And if it were really the case, how long before it is even more enshrined in law?)

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