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Comment by alberth | Hacker News Reader

TL;DR;

Under Chevron, a court defers to agency interpretations of ambiguous statutes, as long as the judge finds the interpretation to be reasonable. If the court limits or upends the Chevron doctrine (which the SCOTUS did), the ruling would pull back the leeway that agencies have had in interpreting statutes.

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For example, now the FCC no longer has the power over topics like Net Neutrality ... that is now left up to the courts.

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The historical stance on this was, agencies should have authority over ambiguous statutes because they are Subject Matter Experts in the space (you can't expect a judge to be a SME on every possible topic).

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Net Neutrality is actually a great example in this context, and it came up at oral argument.

If you take Chevron seriously, the fact of whether or not Congress in 1934 wrote a law that required modern ISPs to be regulated as common carriers under Title II of the Communications Act actually changed as the FCC ping-ponged between Republican and Democratic control over the past 10 years.

If you're a judge who thinks the law should carry forward consistently the same meaning it had when it was passed, difficult ambiguities and all, that's a pretty bad bug: Now the meaning of a law to the people of the United States isn't fixed at all, it can change (and change back) at the will of the President, without Congress amending it.

Instead now the interpretation depends on the court that hears the case? And could change every time it is heard? With the current Supreme Court leaving stare decisis dead and buried it's the legal wild west.

I have to wonder which circuits will be most favorable to the people who want to overturn regulation. Will it be East Texas again? Companies will have a lot of leeway to forum shop when looking to deregulate themselves.

Yes, like any other statutory interpretation case, which judges hear all the time in a thousand different contexts of state and federal law, some highly technical.

A good example from a few terms ago is Delaware v. Pennsylvania and Wisconsin on what is or is not a money order:

https://www.supremecourt.gov/opinions/22pdf/145orig_kjfl.pdf

The oral argument was quite entertaining, IIRC:

https://www.oyez.org/cases/2022/22O145

Or stop passing vague, ambiguous, overly-general laws.

That sounds good, but doesn't work in practice.

New technology advancements make once very well understood laws, now ambiguous.

Take AI as an example. How many laws have been written over the past few decades that could not have predicted AI use cases or its application.

Congress could create a committee charged with developing an AI policy. That committee can include subject matter experts, and can recommend clear specific regulations. They can then draft legislation that codifies that into law.

As opposed to just creating a new "Federal Department of AI" that has broad powers to regulate AI however its unelected administrators see fit.

This is what congress does by creating these agencies that up until now relied on Chevron rather than a drawn out process of creating specific laws (so years can go by with dangerous loopholes etc).

Here's a better example.

~50 years ago, laws were written that stated "all communication companies are consider utilities and as such, all utilities should have common access to 'telephone' poles for use to lay down cable" (I'm paraphrasing).

Up to this point, "communication" just means copper lines for telephone (voice).

Then, in the 1980s - the Internet launched.

New companies are now wanting to lay down Fiber optic cables to use for the Internet, and they want the same "common access" to these telephone poles.

But it's ambiguous, what is a "communication company".

This was well understand in the 60s and 70s to mean telco ... but should that definition now be expanded?

So an agency comes in, and say "yes, fiber is consider communication - fiber companies get access to telephone pols to lay fiber down".

When this law was originally written, it's was clear. But then new technology challenged what the meaning & intent of the law meant.

> subject matter experts

That is a delightfully optimistic name for 'corporate lobbyists.'

Versus the very same thing in regulatory agencies? Are we seriously acting like there isn't a constant revolving door between law enforcement, major regulatory agencies and the companies they interact with?

The CBO of established by Congress to be subject matter experts. It is the peer to the OMB in the executive branch. If Congress wanted an expert branch to study study technical topics I’m sure they could establish something similar.

So make new laws or amend old ones? Isn't that what congress is ostensibly paid to do?

Thousands of highly detailed laws every year, which will still be out of date not not specific enough when they're enacted?

"No, our compound does not pollute the water."

"It's arsenic with an extra carbon molecule, making it more poisonous!"

"But it's not covered in the law, so it's not a pollutant."

Are they not allowed to bring in the relevant agencies experts to help them write the laws?

I guess the main concern would be congress being overly "politicized" (especially right now) and so things would be a bit slower to take effect if everything that pops up becomes a partisan talking point.

But government agencies are also pretty "politicized" too, with agency policy directions flip flopping based on who wins presidential and/or midterm elections.

Maybe I'm too optimistic that this could be a forcing function for people to elect more reasonable people.

At least there's some delay, and all current agency rulings will remain in place until challenged, and even then stand somewhat decent odds of remaining in effect. Maybe it'll be a brexit-like situation where people start to realize it was maybe a step too far, and a more well-defined and robust version of chevron will eventually return? Who knows

To clarify, this is a scope problem. 23 agencies each with thousands of regulations that apply to millions of companies, all up for question and challenge at the same time.

Bringing in the agencies will not change the scope of the problem.

And the real issue, IMO, is that while we're waiting (either on congress or the courts) companies can get away with not following regulations which are currently being questioned (via injunctions granted by politicized judges).

Judges too are unelected and selected by politicians. And they don't have to worry nearly as much about their job, which creates its own issues. There's a reason term limits exist.

Congress isn’t capable of passing new laws in a timely manner. Telling them to do so will just lead to disappointment

Yes, but in practice regulatory agencies can be fairly non-communicative with the companies that they regulate.

I work in the dietary supplements industry, and while people love to call the space unregulated, it's moreso that regulations remain unenforced. So much so that companies often have to ask the FDA for clarification around ambiguous regulations. And the FDA is often keen on not responding. You often find out because the FDA's decided to enforce a rule, one that the industry will have asked for clarification about countless times beforehand.

If regulatory agencies have ample opportunity to clarify ambiguous regulations, they should be doing so. They should not leave it ambiguous until somebody gets hit with a fine. That does not serve public interest.

Or we setup a framework for agencies to be able to decide on new products and chemicals without having to rely on the increasingly deadlocked congress to pass a new law for every little chemical or additive industry wants to add. That framework included tons of checks from both the judiciary and ultimately from Congress themselves who could overrule agencies any time they felt the agency exceeded the bounds of the authority given to them.

Even if we didn't have a near dysfunctional Congress there are so many small decisions on regulations it would take up most of their time passing them individually. No matter how you slice it there's a need for something like the delegation of powers to agencies to keep up with modern industry.

Even without Chevron, Congress can still explicitly delegate something like that to an agency.

We've yet to see what regulation looks like without Chevron. How specific does a delegation have to be will likely depend a lot on the court hearing the case. Is Bitcoin a security or something completely new that the SEC has no jurisdiction over because it doesn't fit cleanly into any definition written by Congress because it wasn't imagined the last time we managed to pass anything in this country? Can the EPA or FDA regulate a new chemical or is the mandate from Congress too broad to allow them to decide that the new chemical is dangerous to human health?

Even if they do write another power delegation law, it's not like the law can't be overturned by the courts if they want to keep their new power.

Do you really want people like Marjorie Taylor Green trying to write all of the technical details for cabbage sales or carboxy methyl cellulose production?

The ACA (affordable care act) was pretty gargantuan because the healthcare system itself is gargantuan. Trying to address all the issues in all the facets of the law resulted in a multi-thousand page bill. It attempted to do what you ask for -- and the result was it was endlessly attacked for being huge, an example of how Washington is out of control.

The problem you complain has been there since the very start, in our constitution. There has been 250 years of court cases trying to determine exactly what the boundary of those vague rules state.

But ACA survived throughout a hostile Republican administration. Isn't that an example of taking the time to write a more explicit law make it more resilient to an administration change.

I don't think that's why it has survived.

The ACA is an example of the divergence between rhetoric and political reality. It is easy to step in front of a camera villainize "ObamaCare" to engage your voters. But if you actually repeal it then you get to explain to those voters at the next election why you reintroduced lifetime caps and preexisting conditions while premiums did not go down (in fact, they probably went up!). Politicians are unfailingly partisan, but they are even more reliably panderers. Can't be an effective partisan from the sidelines.

Language is always vague and ambiguous or it becomes highly technical and incomprehensible.

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