Ironically, that inherent dysfunction is the main reason to suspect that won't happen. But politically, every regulation as automatically partisan, even when it has overwhelming support.
(At least some of) the agencies brought this on themselves with their abuse of the goodwill/benefit of the doubt previously afforded to them. Most flagrant has been the ATF, for one example constantly redefining machine guns or pistol braces, turning millions of citizens into felons with no oversight beyond drawn out and expensive court cases against them.
I never liked the smell of this power being afforded to agencies in the abstract, even for the "good guys" at the CDC or Department of the Interior. It's too rife for abuse. Federal regulations (whether you call it a law or a rule, the party van is coming if you break them) are supposed to be hard to pass. We once needed an amendment to ban alcohol before we forgot the definitions of interstate and commerce, but if my understanding is correct, under Chevron deference the DEA could have decided to schedule it without even asking congress.
The ATF is simply going on function rather than form. It shoots like a machine gun it is a machine gun no matter what you call it.
That being said, bump stocks are a simple enough concept that banning them is stupid. We should quite our obsession over machine guns--there are few situations where it even matters.
The problem with it going through congress is that it will always be political rather than scientific. The agencies don't do a good job, but a lot of that is because of garbage they are saddled with by congress (think of the machine guns--the basic problem is that the legal and practical definitions are out of sync) and a lot of it is because politics manages to get in anyway.
How about a middle ground: agencies can make rules but they must give their reasoning and supporting evidence--and anyone can challenge such in court. You can't go after the ruling but if you can knock out it's supports it goes away. This would cut both ways--exempt something from a more general ruling and the reason for the exemption can be challenged. (And I'd like to see the same thing for laws.)
The part where it breaks down is pointing at a specific piece that enables automatic fire and calling that piece a "machine gun", even if it's just a tiny piece of metal or a specially-tied shoelace.
It turns a 'plain gun' into a machine gun, and there are almost no other ways to do that. So it seems like calling it "a machine gun" is reasonable from linguistic perspective. #wittgenstein
The seers have been banned. I don't think anyone thinks they're not machine gun parts.
What's been going on is the ATF has been going after a variety of methods of circumventing the concept--means of using the recoil to "pull" the trigger without the operator actually pulling it. The result sure acts like a machine gun, albeit an unreliable and inaccurate one. The problem is that it's simply too easy to do, they are fighting a hopeless battle.
My understanding is the same problem applies to silencers--plenty of filters out there that just happen to be of the right size to function as silencers. And there isn't even any reason for the rules against silencers. They aren't like Hollywood, it's still loud but below the threshold of hearing damage.
The case entirely hinged on the definition of machinegun being a gun that fires more than one shot "by a single function of the trigger" with the majority saying that because you need to keep forward pressure to keep firing, bump stocks don't count.
The aspect of bump stocks being just a part and not a gun wasn't important to the case because the statute is clear on this point: any part that's intended to convert a regular gun to a machine gun is itself a machine gun under the relevant law.
I think that's already true, except that you probably need standing - you need to show you're affected by the rule - to sue. There are many rules around rule-making including against arbitrary rules, guaranteed public comment periods, etc.
Not on it's own, no. The bigger culprit there is the erosion of the nondelegation doctrine. But Chevron aggravated the problem by allowing agencies to stretch their authority beyond what even congress intended with little possibility of legal challenge.
Interpreting the law is and should be the role of the courts, not the role of the agencies that that law is supposed to be governing. It'd be like if we passed a law intended to regulate insurance companies, and the courts decided to give deference to the insurance company's interpretation of that law because "they're the experts on insurance".
The US isn't well functioning its just rich
The US is rich because it's well functioning.
* The country was launched on most of a century of essentially "free" land grabs-- limited pushback from native civilizations. buying cheap from distressed foreign powers (Louisiana), the main wars of conquest being insignificant squabbles with Mexico over trifles.
* Said land was also compelling-- you weren't fighting the environment to extract value the way you would be in Siberia.
* After 1865, no significant nation-scale conflict on the territory itself to blow down existing investments.
* This created an opportunity for bulk immigration-- first with Homestead Act style programmes and then because the American economy was compelling enough to be a pull by itself. A high immigrant population has a unique "opt-in" demographics-- a situation that self-selects for entrepeneurialism.
None of this required wildly competent government. George Washington could have chosen to be a king, a religious caliph, or a protosocialist planning enthusiast, and the deck would have still held almost all the same cards.
Consider: Congress passes a law which sets limits on the authority of an agency. You think the agency itself should get to decide what that law actually means? And the courts, the branch of government specifically granted the role of arbiter by our constitution, should be required to differ to that interpretation if anyone ever objects and brings a lawsuit? It's absurd, and no less so than if the law was concerning a private company rather than a public agency.
But that's beside the point anyway, because it shouldn't have to be the legislature's job to be constantly weighing in on whether an agency is following the law as written. That's literally what the courts are for; to interpret nuances of the law.
You could always argue in court that the agency’s interpretation of the statute was not reasonable. The court could always agree with you and establish case law against that interpretation.
It was a two part test:
1. Is the statute clear? If so, defer to statute. Otherwise, go to (2).
2. Is the agency’s interpretation reasonable? If so, defer to agency. Otherwise, the agency's rule is no longer enforceable.
Now, the court is allowed to come up with its own interpretation even in the presence of a reasonable agency interpretation. That is the only change. If the agency's interpretation was unreasonable, then it was already going to get thrown out.
The courts took the authority to throw out interpretations that they themselves (the court!) think are reasonable. Unreasonable interpretations were NEVER protected by Chevron deference.
> Proving something is "not reasonable" in a legal sense is a pretty high bar to clear
Sure it is, but that is literally not the bar. The courts always had the authority to do their own analysis of reasonableness so long as the challenger raised the question. In fact, they didn't just have the authority to do it, they were obligated to do it.
https://www.law.cornell.edu/uscode/text/5/706
The low probability of overturn is an argument for Chevron deference. It is empirical proof that courts almost always found agencies' rules to be reasonable interpretations.
"Correctness" is an actually meaningless concept here. Correct according to which rubric? Please answer specifically.
I.e. you’re going to need a better rubric.
"The agency's own personal interpretation" is another nonsense phrase where you're trying to simply presume your opinion alongside a weak argument. The agency is not a person.
>I.e. you’re going to need a better rubric.
I see nothing wrong with the rubric I gave. It's the one the constitution set up, and therefore 100% correct from a legal perspective. Past courts having different opinions from the current one is irrelevant to that.
> The agency's own personal interpretation" is another nonsense phrase
No, it means exactly what is says. The agency has its own interpretation which has and ought to have no more legal weight than a random person's. If it's just the word "personal" you're objecting to, that's obviously a figure of speech that doesn't alter the substance of my argument.
An agency is an agency, not a court. They have exactly zero constitutionally granted authority to interpret law. Why in your view should their opinion on the law have any more weight than yours or mine, or than any other person's personal interpretation? Or more importantly, more weight than the courts; the institution created for the very purpose of interpreting the law? Because it seems very obvious to me that it shouldn't. Especially in the context of a lawsuit to which the agency is one of the parties.
Okay so on June 27, 2024, the "100% correct from a legal perspective" was that courts defer to agencies when they have reasonable interpretations of ambiguous statutes.
On June 28, 2024, the "100% correct from a legal perspective" was that courts should not defer to agencies when they have reasonable interpretations of ambiguous statutes.
Each of these decisions define which structure "the Constitution set up." This fact is itself defined in the Constitution.
Your argument that this is a good decision because it's "Constitutionally correct" is literally just begging the question. It is an entirely circular argument that could just as easily have been applied to defend Chevron. If your argument can be used to defend either side of it, it's a bad argument.
When I say things like "the courts are the mechanism our constitution defines for resolving disputes about the interpretation of law", I am making a principled argument based on my understanding of the Constitution and the Separation of Powers, not based on anything the Supreme Court has or has not said.
The United States Constitution defines three separate branches of government:
1. The Legislative Branch, which makes law
2. The Judicial Branch, which interprets law
3. The Executive Branch, which enforces law
These branches are intentionally separated from each other to prevent the concentration of power, and so that each branch can serve as a check and balance on the powers of the other branches.
Government agencies are part of the Executive Branch, which enforces law. They are not part of the Judicial Branch, which interprets law. Therefore, they should not have a role in interpreting the law, and granting them that power breaks this simple fundamental principle of the Constitution.
This is civics 101 level stuff. It doesn't seem like it should be controversial to me, which is why I've been asserting it as true without feeling the need to try to justify my points beyond those assertions.
> given that judges likely have even less knowledge of the subject than the ATF, probably worse and more inconsistent.
In the unicorn rainbow world where the regulatory agencies are omniscient saints only worrying about the common good, that may be an argument. In the real world, where the regulators are extremely politicized, extremely concerned with gaining more power and extremely happy to pass completely absurd and harmful regulations if it fits their particular agenda, it's not. And by now we all know this is the world we are living in.
What came before this was at least 15 years of tort action, a patchwork of civil rulings across a wide variety of jurisdictions, and generally, confusion and ambiguity. Not the stuff of efficient government.
From my perspective, this rulemaking is pretty close to ideal. I did not dream of getting such a clear, detailed direction from a federal agency. I think my jaw may have literally dropped as I read through it. I think the web accessibility is an interesting example, because it's not a bloated bureaucracy harassing some fishermen, it's an agency trying to prevent the government from violating your civil rights.
So, is the idea that Congress would have accomplished this instead? I just can't imagine that happening.
The sheer stupidity of that argument is mind-blowing. When you have a government agency with dedicated technical resources, but you will rather a bunch of couple hundred of people with different backgrounds make specific rules about everything. That's just madness
In a https://www.scotusblog.com article, Amy Howe quotes the Chief Justice as saying "Chevron deference, Roberts explained in his opinion for the court on Friday, is inconsistent with the Administrative Procedure Act, a federal law that sets out the procedures that federal agencies must follow as well as instructions for courts to review actions by those agencies. The APA, Roberts noted, directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference. Under the APA,” Roberts concluded, “it thus remains the responsibility of the court to decide whether the law means what the agency says."
I ought to go read the decision for myself, which I have to this point not yet done. I am not an attorney, but do have a general interest in these matters.
But back to the earlier poster's notes, ATF has been a prime example. They have a history of capricious reinterpretation at the whims of whichever administration is in power. They issue letters to people and businesses that say one thing is okay and then outlaw in without any law changes a decade later. I have never owned a pistol brace, but they stated it was an acceptable innovation for certain applications, thousands and thousands of people relied on that, they issue a rule making comment period and get feedback and then threw all of that out and came out with a final rule that bore no resemblance to the one in the comment period. Then they stand behind Chevron that the courts had to listen to their interpretation. It is legal "heads, I win" and "tails, you lose!"
https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...
If the interpretation in Loper Bright was not "reasonable," the Supreme Court already had the tools it needed to reverse the agency without breaking any precedent. If on the other hand it was reasonable, why should the courts be getting involved?
Removing Chevron simply allows the courts to select their preferred policy outcomes more directly.
Everything is ripe for abuse.
———-
Right now, agencies are the defensive structures. Corporations which own media or parties that are effectively corporations - are the threat.
One of the specific defenses that’s employed by private forces is reduction in trust of agencies.
——
All systems are vulnerable. It’s a question of relative vulnerability.
Pistol braces was struck down not on second amendment grounds, but because the ATF failed to comply with the Administrative Procedures Act, specifically failing the logical outgrowth test. They proffered a comment period and then did a switch when publishing the final rule.
Similar shenanigans were afoot with the Trump area bump stock ban, which was ruled against by the Supreme Court itself in Garland v. Cargill. I think that had to do with the agency exceeding its authority beyond what the statute specifically specifies. In laymans terms, the legal details were not ambiguous enough to justify the conclusion that the agency came to stretching the statute through their interpretation.
It's hard to argue with this in principal. The rules as law BS has been a band-aid over dysfunction. It needs to go. It'll hurt in the short term but should be more sustainable in the long term. That people will get more angry at congress for doing nothing is icing on the cake.
I want to be optimistic about this. In practice it seems that the strategy created by McConnel to block any legislation at all has been doing/tricking the voter really well. As he predicted, credit for anything good goes to the current admin while anything bad also gets blamed on the current admin. I can see a likely scenario where "people getting more angry" will only make this strategy to block everything work even better. I hope I am wrong and the "nuance" that congress exists and isn't controlled by the president will finally get into people heads. I also hope that once it gets into their heads, the conclusion won't be that a authoritarian dictator is needed.
"Let's meet in the middle" says the unjust man.
You take a step towards him. He takes a step back.
"Let's meet in the middle" says the unjust man.
There are decades of rules in the federal register. How long do you imagine it will take the legislative branch to patch them?
Go skim some of them, and see if you feel the same way afterward:
https://www.federalregister.gov/documents/search?conditions%...
then being a renter would be quite an adventure.
It's very easy to argue with this in principle. Congress can't be constantly updating every law as new technology or situations emerge. It's much better for laws to set general goals and leave implementation to agencies staffed with experts.
If you are left-leaning, suppose the “experts” are former oil company lobbyists.
If you are right-leaning, suppose the “experts” are Marxists hired by President AOC.
That is why the “trust the unelected experts” idea fundamentally bothers people.
Who is behind this move? What individuals, and what politicians? By what legal means is this happening? I've literally never heard of anything like this before - without further details, this is just political flame-baiting.
The supreme court. The removal of Chevron Deference this year means that the courts have given themselves huge amounts of power over any administrative decision that isn't specifically regulated by congress (rather than the prior stance which was to presume that agency decisions were reasonable interpretations of the legislation unless there was clear evidence to the contrary).
They always have?
Agencies no longer get special privileges in interpreting the scope of what Congress delegated to them.
Within the scope of what Congress delegated to them, they still have an much power and discretion as ever.
The judge said, "Even as the agency has the power, I don't feel sufficiently convinced by their argument and will block it anyway."
That doesn't sound like they have as much power in their delegated responsibilities if an arbitrary judge says "... and you also have to convince me personally, even though you're entitled to do it."
What you are proposing is that Congress be allowed to abolish its own power, completely destroying the constitution.
Who cares if they had that ability? They wouldn't use it.
And even if they did, it wouldn't violate separation of powers.
And even if they did, they could make a new law that takes it back.
Of all the worries about delegation, this one seems like the least meaningful.
https://www.scotusblog.com/2024/06/supreme-court-strikes-dow...
Two (of many, many) books which detail two separate efforts to dismantle our administrative state are:
Lobbying America https://www.amazon.com/dp/0691168016 the history of how Business Roundtable, Chamber of Commerce, et al reacted to The New Deal by transitioning from trade groups to political players.
Democracy in Chains https://www.amazon.com/Democracy-Chains-History-Radical-Stea... shares (Nobel winning economist) James McGill Buchanan's role in bootstrapping the Southern flavored conservative movement (libertarian "free enterprise" segregationists reacting to Civil Rights Era and The Great Society).
Article I, section 1 of the Constitution: ‘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.’
It doesn’t say, ‘Congress may delegate its legislative Powers to the Executive.’ Arguably, the ‘shall’ language forbids that! Article I, section 8 does give the Congress the authority to pass laws necessary and proper to execute its regulation of interstate commerce (among other things), but … it’s not necessary to delegate legislative power in order to execute the law.
Those people need to be paid, and their services accounted for.
Those outreach and comms programs also need to be handled.
Congress can’t add 300 days into 24 hours. So this is a reading of law kinda like an absolutist readings of a text.
By necessity, legislators delegate rule making to agencies.
Who do you want determining the precise definition of a kilogram? Congress or NIST?
By necessity, some rules have the force of law. Like how many state's Secretaries of State are entrusted with clearly scoped essential administrivia, like how to run elections.
Do you really want legislators doing the technical and operational evaluation of tabulators?
Of course, precisely where the lines are between various jurisdictions must be adjudicated. That's why we have the courts. IIRC, most cases heard by SCOTUS pertain to administrative law.
How else could our government function?
I agree that there are distinct activities. In our system, there are three distinct activities: lawmaking, law execution and law application; they correspond to the legislative, executive and judicial branches of government.
It’s clear to me that regulations with the force of law must be passed by the Congress, while regulations applied within the executive without the force of law may be promulgated by the executive.
> By necessity, legislators delegate rule making to agencies.
I don’t see that it is in any way necessary, and I do see that it is extremely dangerous to a republican system of government. Every member of the executive ultimately answers to a single man: the President. If the Congress enables the President to dictate the content of a law, then that one man is a dictator.
The Founders did not want a king, and the Constitution does not allow one. Again, to quote the document: ‘All [emphasis added] legislative Powers herein granted shall be vested in a Congress …’ Not some legislative powers, but all.
> Who do you want determining the precise definition of a kilogram? Congress or NIST?
It’s not about what you or I want; it’s about what the supreme law of the land allows.
As it happens, it wouldn’t bother me if Congress set the definition of the kilogram. Why would it bother you?
> Do you really want legislators doing the technical and operational evaluation of tabulators?
Again, it’s not about what I want, but what the law requires. In the case of tabulation, that seems pretty clearly an executive responsibility. The rules for tabulation seem to be pretty clearly a legislative responsibility.
If one doesn’t like that arrangement, then one is free to advocate for changing the Constitution! An amendment such as ‘The President or his delegate may issue a law defining weights and measures’ would work. I think that it’d be a bad idea, because it gives too much authority to one man (imagine if some future president issued a law defining that any use of the meter is to be punished with death …).
Three major developments from the courts in this direction have been:
- The overturning of Chevron gave courts the power to interpret portions of laws written by subject matter experts, instead of those experts themselves.
- The big questions doctrine has allowed the courts to decide when the legislature has deligated too much power.
- Cornerpost has removed the statue of limitations for challenge policies and rules out in place by agencies.
These together clearly paint a picture. Any policy can be challenged (in any venue, allowing the plaintiff to pick their venue). This allows policies in place for decades to be challenged and brought to the supreme court. The most recent court has adopted the major questions doctrine, allowing them to strike down any policy they feel pertain to "issues of major political or economic significance." (no they didn't define it more than that). Or, if they can't make that argument, they can interpret the law to strike down the policy due to the overturning of Chevron.
We've seen an unprecedented shift of power to the supreme court in the last few years. They're using the disfunction in the legislature as an opening to gain power. Which is scary considering it's a group of 9 unelected people with lifetime appointments.
https://www.scotusblog.com/2024/06/supreme-court-strikes-dow...
https://en.m.wikipedia.org/wiki/Major_questions_doctrine
https://www.scotusblog.com/case-files/cases/corner-post-inc-...
"concluding they did it for no reason"
What?