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Comment by jimmaswell | Hacker News Reader

> There is a move afoot to eliminate all regulations unless they've been specifically passed by Congress. Which is basically incapable of passing anything.

(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.

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Your understanding is not correct. Chevron deference never meant agencies can just make up and pass law; it was a legal doctrine which merely stated that in places where the law is ambiguous (say a law declares water must be clean of pollutants, or bans pistol braces) that courts should look at any guidance from relevant agencies for guidance, since supposedly they should know more about the subject than the courts. It never allowed agencies to circumvent congress or prevented congress from further clarifying law. For example, the DEA doesn’t have the power to schedule drugs due to chevron, Congress includes provisions for the AG to reschedule drugs, which the AG historically has delegated to the DEA, the point being this was a power explicitly granted by congress. While it may sound nice to you right now that the Supreme Court did away with chevron due to your gripes with the ATF, now the definitions of machine guns or pistols or anything else are up to the whims of any judge in any jurisdiction, which could be better or, given that judges likely have even less knowledge of the subject than the ATF, probably worse and more inconsistent.

> Chevron deference never meant agencies can just make up and pass law

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".

Is there a well functioning large country that doesn't effectively govern this way?

The US isn't well functioning its just rich

I think most democratic nations have a similar principle of separation of powers, so... almost all of them?

The US is rich because it's well functioning.

The US is rich for many reasons that have little to do with being well governed.

* 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.

Name one and detail how the administrative state differs

It would not be like that, since insurance companies are not government agencies.

That's an irrelevant distinction. Neither are part of the judicial branch, which is the relevant consideration here.

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.

The thing is: if Congress thinks executive branch agencies are interpreting laws in ways they didn't intend, they can change the law to clarify their intent. If they fail to do so, I have to assume the agencies are doing what Congress intended. But the supreme Court evidently disagrees.

Only with the willing cooperation of the executive branch, or a veto proof majority in both houses. Otherwise the very executive they are trying to reign in could just veto the bill to allow the agencies to continue overstepping their authority.

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.

This apparently needs to be said a million times:

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.

Correct, that's why I said "little possibility of legal challenge" not "no possibility of legal challenge". Proving something is "not reasonable" in a legal sense is a pretty high bar to clear. The point still stands.

There's ample possibility of legal challenge. There was a low possibility of legal overturn for one specific reason: courts generally agreed that agencies' interpretations were reasonable.

> 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.

The fact that they're analyzing the reasonableness of the agencies' interpretations and not the correctness of their interpretations is precisely the problem. There are a lot of possible interpretations of the law that are reasonable but not correct. The judiciary's job is supposed to be to interpret the law, not just to decide whether defendant's own personal interpretation meets some minimum bar of reasonableness.

Arguing is easy when you simply assert your conclusion! :)

"Correctness" is an actually meaningless concept here. Correct according to which rubric? Please answer specifically.

Correct according to the mechanism our constitution defines for resolving disputes about the interpretation of law: the judgement of the court system. A judgement which they were not allowed to make under Cheveron, because they were limited to evaluating the reasonableness of the agency's own personal interpretation.

You’re aware that the Chevron SCOTUS decision was itself part of this exact Constitutional system, right? As was the overturning of Chevron.

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'm making perfectly reasonable arguments; you're the one who's talking nonsense. If there's something you think I have yet to prove why don't you say what it is instead of just calling my arguments weak without offering any counter?

>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.

> 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.

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.

Okay thank you. That's actually a clear 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.

The problem with this is once this has been established, the Congress started being lazy and just throw the lawmaking to the bureaucrats, essentially saying "well. we make this agency and they will figure out the rules, we don't care, whatever". And this makes the law completely unaccessible to the regular citizen and the people being completely unable to influence which laws they are living by. While you can, with great effort, dislodge a bad congressman, there's practically no way for a regular citizen to affect anything within a bureaucratic regulatory agency and they are essentially in charge of lawmaking now. They can pass any law they want - and before SCOTUS intervention, Chevron ensured that you have no recourse at all against them, since the courts (by itself a hugely expensive and prohibitively complex process) will just tell you "the Congress passed the authority to the bureaucrats, so they can do whatever they like, we're not intervening". This is not a good balance of powers and not a good way to manage the affairs in the country.

> 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.

This is coming into my work life with web accessibility: The DoJ published a rulemaking in April that filled the many, many gaps in the existing law that determines if the government is violating the ADA when creating websites, etc.

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.

yeah because Congress now have to become experts at everything: from definition of machine guns, to ADA guidelines. Afterall, if Congress didn't specifically pass the law to the detail, it doesn't exist.

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

That's because it's not actually intended to make the regulations better. It's intended to make it impossible for regulatory agencies to do their jobs effectively, without outright legislating them out of existence, because the people backing it believe that without effective regulation they and their allies will be more easily able to enrich themselves at the public's expense.

It's because that is the constraints that the U.S. Constitution places on our form of Federal government. The Congress passes laws (and controls the money), the Executive implements the law, and the Courts interpret the law. My lay understanding is that Chevron shifted too much power from the Congress and the Courts to the administrative agencies in the Executive branch. It seemed like a "good idea" at the time but over time the abuses became apparent and this Supreme Court reigned it back in towards the balance of powers required by the Constitution.

What abuses

I am not a legal scholar, but from my understanding enough that serious cases were filed and fought and made in all the way to the Supreme Court.

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!"

In terms of 'applying their own judgement' I wonder if this would take the form of agencies still pursuing their normal course of regulation, but courts having the option but not the obligation to defer to that regulation as an expert reference, at which point they are essentially reifying the regulation into case law. I wonder if you'd even get cases designed to lead judges to rule for a regulatory agency's interpretation to get the regulation more firmly established.

Well, if you look at the case that was in front of the court when they overturned Chevron: The National Marine Fishery Service decided that since the Magnuson–Stevens Act allows for them to place monitors on fishing vessels in order to prevent the over-fishing of certain species but since their budget was lower and they couldn't actually afford to pay the monitors they decided that each ship would have to pay for them.

https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...

The thing about Chevron deference is, it was already limited on its face: it only operated at all in places where the statute is silent or ambiguous, and only commanded deference to "reasonable" interpretations.

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.

If congress says "companies can't pollute and the EPA determines what is a pollutant" then the EPA is implementing a law congress passed. That's not against any constitutional constraints.

Machine guns?

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 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.

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.

If it carries the "machine gun" ability with it, it's like ... The Enchanted Seer of Automatic Firing.

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

I don't think the "almost no other ways to do that" part holds up.

Yes, other countries manage. Restricting gun ownership rather than machine gun ownership is one approach.

No.

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.

Though that's not what the Supreme Court actually held when tossing the bump stock ban: they instead said that a gun equipped with a bump stock isn't a machine gun and that's why the ban was invalid.

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 the machine gun issue is mostly settled. But there is a lot of controversy lately about what is a short barreled rifle (which requires a special federal permit). I don't know the specifics but the laws have been changed after people purchased their guns, such that if they were caught with them they would be in violation of serious gun laws (essentially as serious as having a machine gun without a permit)

> agencies can make rules but they must give their reasoning and supporting evidence--and anyone can challenge such in court.

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.

There’s always one part I find worth adding about government being ripe for abuse.

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.

It's also about dividing power and checks and balances, and the legitimacy of democratic government.

https://en.wikipedia.org/wiki/Congressional_Review_Act

"constantly redefining machine guns or pistol braces"

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.

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