[HN Gopher] Supreme Court overturns 40-year-old "Chevron deferen...
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Supreme Court overturns 40-year-old "Chevron deference" doctrine
Author : wumeow
Score : 504 points
Date : 2024-06-28 14:31 UTC (8 hours ago)
(HTM) web link (www.axios.com)
(TXT) w3m dump (www.axios.com)
| jason2323 wrote:
| What is the significance of this
| burkaman wrote:
| From the New York Times:
|
| > The Supreme Court on Friday reduced the authority of
| executive agencies, sweeping aside a longstanding legal
| precedent that required courts to defer to the expertise of
| federal administrators in carrying out laws passed by Congress.
| The precedent, Chevron v. Natural Resources Defense Council, is
| one of the most cited in American law. There have been 70
| Supreme Court decisions relying on Chevron, along with 17,000
| in the lower courts.
| epicureanideal wrote:
| Huge and positive in the direction of lawmakers making law, not
| regulatory bodies that are unelected. Similarly in favor of
| trials by jury and not by regulatory administrative courts.
|
| A huge win for democracy and freedom that both major US parties
| and all citizens should celebrate.
| mywittyname wrote:
| So...bad.
|
| I'm the person who prefers having regulatory bodies handle
| matters over a dysfunctional and ignorant congress who is
| political about everything.
| vdqtp3 wrote:
| A regulatory body who is not responsible or beholden to the
| citizenry, and who cannot effectively be balanced by
| another portion of government?
| iaw wrote:
| Wasn't this decision essentially _made_ by the ultimate
| regulatory body in the country?
|
| How is the supreme court beholden to citizenry? They have
| life appointments, they're beholden to no one (except
| exceedingly rich "friends" apparently)
| vdqtp3 wrote:
| No, that's the core issue. They are overstepping the
| authority granted in legislation. If Congress passes an
| open-ended law saying "Agency X can administer Y in
| accordance with rules 1,2,3" then the agency should not
| be able to simply decide that rules 4,5,6 should also be
| created. This is what has been happening for decades, has
| been defended by Chevron, and is being forbidden by this
| decision.
| maximilianburke wrote:
| A regulatory body that is staffed by people who are well
| versed in the intracacies of the industries they are
| overseeing, rather than Representative Marge McCrazyPants
| who legitimately believes in the existence of space
| lasers owned and operated by certain religious adherents.
| justsocrateasin wrote:
| Why so much distrust for our civil servants? Have you met
| any of these people? I grew up in the DC area and both
| liberal and conservative civil servants are dedicated to
| truth, science, and the well being of the American
| people. Sure, there are exceptions, corruption is
| everywhere, etc. but by and large, the people who work in
| government agencies have our interests in mind. I say
| this as a liberal who briefly consulted for U.S. Customs
| and Border Protection - the people working at that agency
| understand immigration far better than I ever could. If
| you left it up to radical politicians to decide
| immigration, you'd be left with policies that swung too
| far in either direction every four years.
| kbolino wrote:
| The era of a bipartisan civil service is past. The civil
| service, at least those offices which are in and around
| DC, is heavily liberal and is trending more so over time.
| In 2020, DC went 92% for Biden, and Biden also handily
| won every county with significant government employment
| in Maryland and Virginia.
|
| Though I couldn't easily find any hard statistics, which
| may not exist for Hatch Act reasons or otherwise, I'd
| rate the current composition of the DC-centered civil
| service at around 70-80% Democrats; defense and
| intelligence a little lower, health and social services a
| little higher. If current trends continue, this will
| reach 90% in many agencies within a decade.
|
| Whether this is a problem or not is a different matter.
| It is obviously not representative of the country as a
| whole, though that is only based on a rather shallow and
| one-dimensional analysis. However, it explains at least
| part of why this is happening.
| vdqtp3 wrote:
| Yes, I was a government contractor for a significant
| portion of my career. This certainly didn't encourage me
| to trust elected officials or agency employees.
| stale2002 wrote:
| Hey, you can have this position. Just realize that you've
| lost your future right to complain about project 2025
| when that passes and every agency has all their civil
| servants replaced.
| intended wrote:
| Why would they have lost their right to complain?
| Gormo wrote:
| > Why so much distrust for our civil servants?
|
| What have they done to earn my trust? Why would I choose
| to outsource critical decisions pertaining to my own life
| and affairs to strangers who are not meaningfully
| accountable to me and have no direct understanding of my
| values or interests, regardless of how well-intentioned
| they may be?
|
| What possible reason could there be to give civil
| servants authority to make decisions that materially
| impact us without any oversight or accountability?
| Spivak wrote:
| First, that's not true. It's just a degree of separation
| from your vote that you're uncomfortable with.
|
| But yes, the fact that 99% of our government is made up
| of these people who are a few layers separated from
| direct political bullshit is why it functions at all.
|
| We are much better off when these agencies operate
| autonomously and elected representatives can intervene
| when necessary instead of making them go back to the meat
| grinder to do anything.
| shrubble wrote:
| Are you familiar with the term "regulatory capture"?
| least wrote:
| Government agencies are similarly dysfunctional, though
| they do have the benefit of (at least hypothetically)
| hiring subject matter experts to guide policy, but that's
| kind of why we have committees in the legislative branch.
|
| The other issue of course is that the people leading
| agencies are playing politics just like everyone else. Do
| people not remember the controversy surrounding Ajit Pai's
| leadership of the FCC?
|
| The difference is you vote for your legislators directly
| and can hold them accountable for their actions. For
| federal agencies, you're at best indirectly voting for them
| through voting in a presidental election, but mostly
| there's no accountability.
| rsoto2 wrote:
| our "regulatory bodies" (everyone's fav new word) allowed
| US companies to poison the blood of every child in the
| world and those companies and people responsible faced
| little consequence.
| Gormo wrote:
| To borrow from Babbage, I can't rightly comprehend the kind
| of confusion of ideas that might lead one to complain about
| political institutions being political.
|
| The entire purpose of the political (and judicial) process
| is to reconcile to competing interests and conflicting
| values of the wide variety of people who make up society.
|
| It is a delusion to hold that the matters regulatory bodies
| are involved in are somehow entirely empirical questions
| with unambiguously correct answers -- in reality, there are
| normative questions, value judgments, trade-offs and
| conflicts of interest inherent in every decision point.
|
| These decisions _are_ political ones, and allowing
| regulatory bodies to make inherently political decisions
| for everyone else can only have the effect of entrenching
| one faction 's interests and values at the expense of
| everyone else's.
| pavlov wrote:
| Nice in theory, but have you seen Congress...? They're unable
| to even agree to pay their bills, much less legislate on this
| level.
| dyauspitr wrote:
| Elected officials are idiots and at the whim of their
| constituencies. They can't make reasoned, scientific
| regulations.
|
| Some lawmaker is going to call for dumping all PFAS into the
| local river for example.
| AnimalMuppet wrote:
| Absolutely true.
|
| But there's also a revolving door between the regulators
| and the companies they regulate. Sure, Congress is
| dysfunctional. But regulators are also flawed.
| iaw wrote:
| > A huge win for democracy and freedom that both major US
| parties and all citizens should celebrate.
|
| You've said this elsewhere in thread but you're making an
| idealogical claim with no supporting information. Congress is
| virtually non-functional, the court voted on idealogical
| lines, it only benefits one party to put more responsibility
| into congress.
|
| So maybe 50% of the country should be celebrating?
|
| I for one see a lot of problems with this ruling and the
| secondary and tertiary consequences it will cause.
| ekelsen wrote:
| That's one take...
| mcmcmc wrote:
| How is it a win when the US justice system is so incredibly
| broken? This is a win for rich people and greedy firms who
| can drown their victims in drawn out legal action by throwing
| money at them. Jury trials are a zero sum game and are not
| actually that great at achieving just outcomes. They make
| sense for individuals, but corporations are NOT people and
| should not be entitled to the same constitutional rights.
| Firaxus wrote:
| I don't understand this take, because the elected officials
| could have always made any law regulating this stuff
| regardless of this ruling. The fact they haven't tells us
| something.
|
| And this ruling will result in a lot of the common good
| (limited resources like fish, air quality, etc) being
| trampled upon and becoming the profit of a couple companies,
| taking these goods away (sometimes irrevocably such as in the
| case of over fishing) for the generations of the future.
|
| We need our regulatory bodies to be able to move faster
| because by the time congress might respond it will be too
| late.
| braiamp wrote:
| There's a very good reason why technocrats are better
| prepared to implement policy and enforce it. They usually
| have vantage points from which they know the intricacies of
| the field under their purview, understand where compromises
| must be made and conversely points where it _should not_
| compromise. A good administrator needs to have abilities to
| administrate without second guessing by a third party, unless
| it's demonstrable that their general objective (which every
| state institution has) isn't congruent with the actions
| taken.
|
| Someone made the example of a factory that sells products for
| ingestion. If the regulator (FDA) doesn't have the tools to
| effectively protect the public of insecure foodstuff, who
| will? Consumers? Consumers will eat excrement if the price is
| low enough, because that's what's is available to them.
| Consumer power isn't vested in the consumers, it is vested in
| the regulatory agencies, since these have resources and
| expertise to recognize unfair, unsafe, anti-competitive,
| anti-consumer, etc practices, because unlike consumers, these
| have an advantage point of view, rather than the individual
| trying to find others with their same condition.
| andyjohnson0 wrote:
| > A huge win for democracy and freedom that both major US
| parties and all citizens should celebrate.
|
| A huge win for corporations and corporate freedom that one
| major US party and all shareholders should celebrate.
| EricDeb wrote:
| I could not disagree more
| intended wrote:
| We should further defang the SEC. We really need a new round
| of crypto and mortgage backed securities.
| badrequest wrote:
| Corporations will run roughshod over regulators and everyday
| citizens' lives will be measurably worse as a consequence.
| epicureanideal wrote:
| Not at all. They can still be sued, and lawmakers can still
| make laws.
|
| (edited, originally mistakenly wrote "regulators" can still
| make laws, which is exactly the wrong thing)
| rty32 wrote:
| Of course, we regularly have big, major bipartisan bills
| getting passed in the Congress, don't we?
|
| /s
| AdamN wrote:
| And that's better how??
| giantrobot wrote:
| The word "can" is doing a lot of heavy lifting in that
| statement.
| Retric wrote:
| Actual laws are up to congress etc which frankly don't
| understand the intricacies because it's not their job. So
| it's common for agencies to be given authority to oversee
| something without a law explicitly defining specific level
| of salt in drinking water etc. Regulators therefore don't
| make laws only clarifying where boundaries exist (safe
| levels > X ppm).
|
| Deference for unintentional ambiguity seems unrelated, but
| in the real world people want to know where the lines are
| so they can respond accordingly. Not knowing where the
| limits are gets expensive for anyone not trying to push
| boundaries.
|
| Lawsuits meanwhile are horrifically inefficient in terms of
| time. What exactly are people supposed to do while waiting
| for a lawsuit to finish? For some things sticking with
| existing guidelines works but nobody wants to make major
| investments when the underlying rules are about to change.
| Clarity is far more valuable than generally perceived and
| that's what's being destroyed here because the courts even
| decades to make the meanings of laws clear.
|
| This decision is therefore directly and significantly
| harmful to the US economy.
| redeux wrote:
| Regulators don't make laws and local governments have spent
| years limiting corporate liability, so I don't think your
| opinion on this is based in reality, unfortunately.
| hobs wrote:
| Damn yeah lawsuits are really a quick and useful remedy to
| these problems, as long as you are willing to wait a decade
| or more for the resolution.
| jandrese wrote:
| Assuming you don't run out of money before the suit is
| finished. The corporation won't have this issue.
| HelloMcFly wrote:
| All you need is a lot of money, a lot of time, a problem
| that is fixable, legislators willing to work together,
| and/or a judiciary operating outside political ideologies.
|
| We'll be fine, everyone. Nothing to see here.
| morkalork wrote:
| Don't worry, lobbyists are experts at crafting bills and
| have the money necessary to motivate congress critters
| into action!
| justsocrateasin wrote:
| In theory, I entirely agree - regulation should not be
| decided by agencies, but by lawmakers. In practice, this is
| so painfully far from reality. Do you really think congress
| has the ability to pass meaningful legislation on complex
| issues? Do you think that lifelong politicians can do a
| better job than civil servants who have spent their entire
| lives studying this particular issue?
| Molitor5901 wrote:
| Well, let's see.. The Affordable Care Act was a
| meaningful law based on a very complex issue. Was that
| wrong? Do you think civil servants with no oversight is
| better somehow?
| EricDeb wrote:
| Generally yes because civil servants are hired to be
| experts at that particular aspect of government
| Tadpole9181 wrote:
| The political landscape has, surprisingly, changed in the
| past _14 years_.
| Molitor5901 wrote:
| Regulators do not make laws, they make regulations based on
| authority granted to them in law.
| kergonath wrote:
| "The chicken will be fine, the structure is still there",
| says the fox guarding the henhouse.
| EricDeb wrote:
| And Congress is fantastic at passing laws and amending
| small details after the fact with follow-up laws \s
| intended wrote:
| Depends on what rights the corporations enjoy and the
| states where the corporation is sued.
| okrad wrote:
| https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura...
| .
| FDAiscooked wrote:
| FDA finds food factory to be non compliant with food safety
| standards.
|
| FDA can't shut down the factory. It has to take it to court.
|
| A Judge with a JD or a jury of random people will decide if the
| factory can stay open.
|
| Factory stays open.
|
| Millions of people eat salmonella contaminated food.
| mywittyname wrote:
| I'm guessing the next stage is to prevent people from being
| able to sue said factories?
| iaw wrote:
| By opening the package of salmonella you've agreed to
| binding arbitration agreement in the venue of their
| choosing.... Sadly I'm not even that far from serious.
| jasonjayr wrote:
| Nah, there will be some binding arbitration clause hidden
| on that package of rice , so you can't sue or join a class
| action.
| redeux wrote:
| Yes, or absent that just limit the liability to a trivial
| amount, which many state governments have already been
| doing for years.
| kergonath wrote:
| You don't need to go that far. Just make it inconvenient
| and expensive.
| Molitor5901 wrote:
| That's absolutely 100% false. The Federal Food, Drug, and
| Cosmetic Act gives the FDA considerable authority to shut
| down a food factory if it is not adhering to regulations and
| laws regarding safety.
|
| Where do you find that the FDA cannot shut them down?
| EricDeb wrote:
| But who is making those regulations if congress doesnt
| write those specific regulations into law? Isn't that the
| whole point of this being overturned.. the FDA no longer
| can make regulations that arent explicitly outlined in a
| bill.
| Molitor5901 wrote:
| The FDA can absolutely make regulations so long as they
| are done with the authority granted to them in the law.
| The problem has been agencies, such as the FDA whom I
| have worked with for going on a decade, have grossly
| overstepped their congressional authority. When
| challenged, the government's case is that the
| administrative regulators know best, and because of
| Chevron, the courts should defer to them, even if it's an
| overreach beyond their congressional authority.
|
| This is not about specific regulations, it's about the
| authority to write those regulations and where the
| boundaries are.
| techostritch wrote:
| "even if it's an overreach beyond their congressional
| authority "
|
| Chevron specifically says though that it should be within
| their authority and reasonable.
| Molitor5901 wrote:
| Therein lies the issue: Regulators have gone beyond their
| authority, not only into what is unreasonable, but what
| is not backed by statute. Chevron said the courts should
| give deference, unfortunately that deference has gone too
| far.
|
| Taking your point however, I think congress will
| eventually be forced to act on this. We do need _some_
| deference to regulators, but that deference has been
| turned into legislative abdication. This decisions sets
| that right.
|
| When congress is ready to write a law that gives greater
| deference to regulators they will. Until then, in my
| opinion, this was a proper decision of government
| restraint.
| intended wrote:
| This is so transparently hopelessly naive that it's
| endearing.
|
| This is not the only case which will be brought to this
| court.
|
| The point is to tie congress up, or make sure legislation
| passed is pro business.
|
| The courts will defang the agencies. This will get you a
| repeat of 2008 and the bailout, and the net neutrality
| bill.
| techostritch wrote:
| "Unfortunately that deference has gone too far"
|
| I don't think I can support an objective idea that it's
| "gone too far" when the decision was on ideological
| boundary. This was political activism not jurisprudence.
| morkalork wrote:
| With hack judges like Aileen Cannon, good luck!
| Arthur_ODC wrote:
| It's another chip away at oversight protections.
|
| The more things like this happen, the more the function of
| government (and business, and relationship between labor and
| business) will return to the way they were operated in the US
| between 1880 and 1920.
| bitshiftfaced wrote:
| When Congress writes a law that establishes a new regulatory
| agency, they outline what that agency does and how they enforce
| the regulations. Inevitably as time goes on, new edge cases
| come up or someone realize that the law is ambiguous. Chevron
| deference established a precedent where the regulatory agencies
| were allowed to resolve these ambiguous cases or do things not
| specifically written into the law. This decision means that
| companies can now fight certain decisions they couldn't
| previously.
|
| For example, one of the cases that led up to this was due to
| the National Marine Fisheries Service forcing fishing companies
| to pay their monitors' salaries. The law established the
| monitors and their role, but it did not say that the companies
| must foot the bill.
| tivert wrote:
| So basically, Congress is going to have to pass more updates
| to previous laws to reflect what the regulatory agencies need
| or want. Basically, fix the bugs in the core legislation
| instead of patching it downstream.
| techostritch wrote:
| This seems really inefficient though. Do we really want
| top-down authority of decision making like this? No one
| would think it was good if in a company where if the rules
| of how to do your job were vague (and in this case, we're
| talking about delegated responsibilities), you had to go to
| the board of directors to get them clarified.
| tivert wrote:
| And it may be so, but the law/constitution doesn't
| automatically morph to adapt to whatever some particular
| person thinks is more efficient. If this is really
| needed, maybe it's time for a constitutional amendment
| adapt the structure of the government.
| techostritch wrote:
| We can nit pick what you meant by 'automatically' morph,
| but the fact that it was just forced into a pretty severe
| morph to adapt to what 6 particular persons wanted I
| think challenges the argument you're making.
| salawat wrote:
| Welcome to the core of the Anti-Federalists argument.
| They saw a Federal government as an inevitable on-ramp to
| creating a top-down governed society. Chevron deference
| represented a worsened slip down that slide, because each
| Executive Agency basically Lorded over it's National
| scaled domain without chance for redress in the relief
| valve specifically designed for the task; the Courts/the
| Judiciary.
|
| With Chevron deference struck down; it's now possible to
| even _get_ an Agency 's administrative law sanity checked
| by the Courts.
| Gormo wrote:
| > This seems really inefficient though. Do we really want
| top-down authority of decision making like this?
|
| No, which is why we want the people previously free to
| make top-down decisions, i.e. executive-branch agencies,
| to be subject to judicial oversight when attempting to
| read new powers for themselves into the law. Doing away
| with Chevron restores that oversight.
| cryptonector wrote:
| Not just companies, but also _individuals_.
| psunavy03 wrote:
| If a Federal law telling you what you can and can't do with
| widgets was ambiguous, then courts were previously required to
| defer to the Federal Widget Agency's interpretation of the law
| as long as the judge found the interpretation "reasonable."
|
| Now, if there is a lawsuit or other legal matter over widget
| usage, the court can take the Federal Widget Agency's
| interpretation of the law into consideration, but is free to
| rule however it sees fit on the precise interpretation of
| Federal widget law.
| rootusrootus wrote:
| We are now going to need to place a great deal more trust in
| Congress to legislate with nuance and understanding of the
| issues. Obviously the congressmen cannot really become that
| knowledgeable about every topic, so they will rely even more on
| advisors to write the legislation for them. We have some idea
| of how this plays out, because it already happens.
| zerocrates wrote:
| Chevron says (said) that the courts should defer to agencies as
| the experts in their specific arenas when interpreting vague
| laws. This situation comes up _a lot_. It 's quite common for
| Congress to delegate to an agency with only quite broad
| language, relying on the agency to fill in the specifics
| through regulation.
|
| Practically, the major effect here is to reduce the power of
| the executive (and of Congress to delegate to the executive)
| and increase the power of the courts.
|
| Like many of the Supreme Court's actions, it needs to be
| understood in the context of the years of history of Congress
| being in an almost total state of paralysis, so decisions that
| nominally "kick things back" to Congress are of enormous
| significance.
|
| The decision tries to say that this doesn't affect the
| solidness of the many many prior cases that relied on Chevron
| deference, but expect a flood of challenges to regulations in
| basically every field.
| neaden wrote:
| This court continues to make decisions that might be defensible
| if you were making them for the first time, but go against
| decades of precedent in which time many laws have been written on
| the assumption that things would work a certain way. For a group
| that claims to be holding to tradition they sure are willing to
| throw things into chaos.
| epicureanideal wrote:
| Sometimes bad precedents need to be overturned when decades of
| evidence have accumulated that it was a mistake, and this is
| one 100% of people should be happy about.
|
| There have been other poorly decided precedents in the past
| that were later overturned, for example:
|
| https://en.m.wikipedia.org/wiki/Dred_Scott_v._Sandford
| iaw wrote:
| Can you explain why that would be the case?
| TallTales wrote:
| From my perspective it's because the constitution outlines
| law making as a power given to the legislative branch. To
| give regulatory agencies the ability to effectively create
| law by reinterpretation is clearly bad. But to let the
| courts give broad deference to the executive branch
| agencies, when challenged on it, is a clear violation of
| the separation of powers. Beyond that, it is just wrong, in
| my opinion, for unelected bureaucrats with vested personal
| interests in these issues to get deference over the people
| they serve.
|
| Edit: clarification and wording
| consumer451 wrote:
| > when decades of evidence have accumulated that it was a
| mistake
|
| Would you care to share this evidence?
| neaden wrote:
| The legislature are not experts and it is reasonable for them
| to rely on the experts in the agencies that they created to
| fine tune implementation. If this was really bad then you
| should take it up with the legislature to change the laws.
|
| This goes into a core misunderstanding I think a lot of
| Americans have, that we have three co-equal branches of
| government. That was not the intention, the Legislature is
| supposed to be the most powerful, creating laws and with the
| authority to impeach the other two branches, who have no way
| of removing legislatures. Over time the other two branches
| have been accumulating power that should belong to the
| legislature, and I see this as yet another example.
| maxwell wrote:
| Then they can consult with experts, put it in a bill, and
| vote on it, instead of leaving it up to later extra-
| legislative discretion from political appointees with
| questionable expertise.
|
| It sounds like you're referring to Locke's view on
| separation of power? He did hold legislative power supreme
| over the others like you say, but also noted that
| legislative power derives its authority from the people
| (consent of the governed), who have the right to make and
| unmake the legislature.
|
| > And when the people have said we will submit to rules,
| and be governed by laws made by such men... nobody else can
| say other men shall make laws for them; nor can the people
| be bound by any laws but as such as are enacted by those
| whom they have chosen, and authorized to make laws for
| them.
|
| Representation is now extremely poor in the United States.
| Colonial Americans enjoyed better representation on paper
| (though virtual) than the average American does today.
| People have better representation in Commie China. We're an
| extreme outlier among OECD countries, with over 700k
| constituents per rep. Compare Nordic countries, with more
| like 40k per rep, closer to the U.S. in the late 1700s and
| early 1800s. The only act of Congress I advocate for is
| repealing the "Permanent" Apportionment Act of 1929.
| theptip wrote:
| That doesn't solve the problem; how do you decide the
| ambiguity in the meantime? (Concretely, some court is
| evaluating a dispute. Does the EPA have the right to
| decree X, or not?)
| maxwell wrote:
| In the U.S., the federal government only has powers that
| have been explicitly allocated by the sovereign (the
| People). The executive, under the guise of any three
| letters, can't "decree" shit beyond EOs. The President
| has enforcement and federative powers, not legislative.
| rustcleaner wrote:
| >by the sovereign (the People)
|
| This is a mere magick trick that can only ultimately be
| enforced by private firearms.
|
| You do not hold allodial title to the things which you
| need to live. You can be involuntarily caged for long
| periods for mere _possession_ of materials or objects.
| You are a subject, not a sovereign. Try protecting
| yourself from kidnap by an enforcer next time he catches
| you with a joint, you will be swiftly escalated to
| execution if you successfully fight off application of
| chains. You are not sovereign if your choices are death
| or obedience (even to the god /religion "The Law").
|
| Our system kills sovereigns systematically and convinces
| its subjects they're sovereign (they're not) in order to
| lessen the odds said subjects learn from the state and
| get violent against its enforcers. Democracy did not help
| us: it helps the ruling elite by playing a magick trick
| on you, convincing you to give up violent power and
| accept the unacceptable because "We have rules and a
| system, and you agreed to those rules so tough nuts!
| You've got a chance for change next election cycle."
|
| Its original intent was noble, but seriously try BSing me
| that we have any effect after the comedic horror show
| last night...
| caseysoftware wrote:
| > _The legislature are not experts and it is reasonable for
| them to rely on the experts in the agencies that they
| created to fine tune implementation._
|
| That gets to the deeper problem..
|
| If you have one group that is in charge of creating the
| rules, interpreting the rules, and enforcing the rules, you
| can't trust the process is independent and there's equal
| treatment.
|
| If the legislature are not experts - and they're not on
| many many topics - they need to either a) find those
| experts for advice or b) keep their hands out of it.
|
| Legislatures delegating their authority diminishes their
| office, blurs lines of authority, and lets them abdicate
| responsibility.
| blackeyeblitzar wrote:
| > keep their hands out of it
|
| This. I do not think it is appropriate for legislators to
| delegate as broadly as they have. The default should be
| for them to not pass laws, if they don't have time to
| understand the issues. Instead, they are basically
| creating new legislative branches under the executive
| branch.
| Jcowell wrote:
| > The default should be for them to not pass laws, if
| they don't have time to understand the issues.
|
| That's insanity. Why wait when you can have a regulatory
| body dedicated to understanding and regulating based on
| those understanding. If they fuck up , the delegating
| power has the ability to rein it in.
| salawat wrote:
| >If they fuck up , the delegating power has the ability
| to rein it in.
|
| We synonimize "an Act of Congress" with something long,
| drawn out, and ardorous for a reason. With that ability
| to rein in locked behind gaining the buy in of the rest
| of the Congress, it leaves an Executive Agency able to
| play "scope chicken" with the Congress.
|
| Making law is Congress's job. Id a rule needs making, the
| Legislature should have in place the framework to handle
| the act of rulemaking; but importantly, seperately from
| the enforcement mechanism. The Judiciary should
| equivalently accommodate a venue for redress of grievance
| w.r.t interpretations in play.
|
| Failure to do the above without the seperation of power
| is a failure to govern.
| tastyfreeze wrote:
| It is much worse than just creating a legislative branch
| under the executive. Executive agencies are judge, jury,
| and executioner when it comes to their rules. They have
| their own enforcement teams, courts, and make up their
| own penalties for violating the rules they made up. They
| are like a government inside the Constitutional
| government.
|
| The government is required to give everybody a speedy
| trial with a jury of their peers. Fines are also required
| to not be excessive. Violate an executive agency rule and
| you will not get what is required by the Constitution.
| tivert wrote:
| > If the legislature are not experts - and they're not on
| many many topics - they need to either a) find those
| experts for advice or b) keep their hands out of it.
|
| That's why we have Congressional hearings, etc. It's not
| like the legislature makes laws in a locked room,
| consulting nothing but their own minds.
| dctoedt wrote:
| > _If the legislature are not experts - and they 're not
| on many many topics - they need to either a) find those
| experts for advice or b) keep their hands out of it._
|
| The way our system is set up, they generally don't have
| time to do a good job under a), and leaving things alone
| under b) would clear the field for polluters, fraudsters,
| etc.
|
| Someone upthread said that _Chevron_ deference is a
| useful hack; that 's absolutely right. Sure, there's
| technical debt there, but the power structure and
| individual incentives for legislators have made the hack
| a useful way to keep the system running.
| caseysoftware wrote:
| > _the power structure and individual incentives for
| legislators have made the hack a useful way to keep the
| system running_
|
| And abdicate responsibility from people we can hold
| accountable via elections to anonymous bureaucrats that
| _may_ be knowledgable in their fields but we 'd never
| know it.
|
| If it's important, Congress should be willing to write it
| into law (or amend the Constitution?) instead of
| depending on a 40 year old hot fix.
| dctoedt wrote:
| > _Congress should be willing to write it into law (or
| amend the Constitution?)_
|
| That'd be the preferred solution, but given the existing
| incentives, it's almost certainly not going to happen.
|
| It's a version of the installed-base problem: The
| existing House members and senators got where they are
| through the existing system, and it's not at all in their
| personal interests to make major changes.
|
| It's also akin to the software rule that scrapping a
| running system and rewriting it "the right way!" is
| dangerous, because the running system (hacks and all)
| encodes a lot of hard-won knowledge about edge- and
| corner cases, bottlenecks, etc. In politics, it's
| especially true, because we have _so_ many different
| players -- with often-conflicting interests -- who have
| _very_ different ideas of what "the right way" would be.
| "Refactoring" is the best we can realistically hope for.
| salawat wrote:
| >If the legislature are not experts - and they're not on
| many many topics - they need to either a) find those
| experts for advice or b) keep their hands out of it.
|
| Or c) set aside budget to fund their own infra and pool
| of expertise to enable members of the Branch to conduct
| legislative business competently, and most importantly,
| independently, of the other two branches, like was the
| original intent behind the Library of Congress.
| vharuck wrote:
| >If you have one group that is in charge of creating the
| rules, interpreting the rules, and enforcing the rules,
| you can't trust the process is independent and there's
| equal treatment.
|
| You don't have to trust them. You can sue them for not
| going through a rulemaking process that includes
| publishing proposed rules and reviewing public comment,
| or for a rule that "was arbitrary, capricious, or an
| abuse of discretion."
|
| https://www.federalregister.gov/uploads/2011/01/the_rulem
| aki...
|
| That happens a lot. The first two (was it three?) travel
| bans during the Trump term were struck down this way.
|
| >Legislatures delegating their authority diminishes their
| office, blurs lines of authority, and lets them abdicate
| responsibility.
|
| Then they should be replaced at the ballot box with
| legislators who will reclaim the duty to author the
| rules. Why is the Supreme Court the entity to force this
| change and ignore the intent of Congress?
| caseysoftware wrote:
| > _You can sue them for not going through a rulemaking
| process that includes publishing proposed rules and
| reviewing public comment, or for a rule that "was
| arbitrary, capricious, or an abuse of discretion."_
|
| Or you can remember that the Executive Branch's job is to
| enforce the laws, not write them.
| gradus_ad wrote:
| "(4) Because Chevron's justifying presumption is, as Members of
| the Court have often recognized, a fiction, the Court has spent
| the better part of four decades imposing one limitation on
| Chevron after another. Confronted with the byzantine set of
| preconditions and exceptions that has resulted, some courts
| have simply bypassed Chevron or failed to heed its various
| steps and nuances. The Court, for its part, has not deferred to
| an agency interpretation under Chevron since 2016. But because
| Chevron remains on the books, litigants must continue to
| wrestle with it, and lower courts--bound by even the Court's
| crumbling precedents--understandably continue to apply it. At
| best, Chevron has been a distraction from the question that
| matters: Does the statute authorize the challenged agency
| action? And at worst, it has required courts to violate the APA
| by yielding to an agency the express responsibility, vested in
| "the reviewing court," to "decide all relevant questions of
| law" and "interpret . . . statutory provisions.""
|
| "Stare decisis, the doctrine governing judicial adherence to
| precedent, does not require the Court to persist in the Chevron
| project. The stare decisis considerations most relevant
| here--"the quality of [the precedent's] reasoning, the
| workability of the rule it established, . . . and reliance on
| the decision," Knick v. Township of Scott, 588 U. S. 180, 203
| (quoting Janus v. State, County, and Municipal Employees, 585
| U. S. 878, 917)--all weigh in favor of letting Chevron go.
| Chevron has proved to be fundamentally misguided. It reshaped
| judicial review of agency action without grappling with the
| APA, the statute that lays out how such review works. And its
| flaws were apparent from the start, prompting the Court to
| revise its foundations and continually limit its application."
| iaw wrote:
| So.... Feels like all this ignoring Stare Decisis is setting
| the groundwork for the court to get packed and become another
| joke of our governance mechanism.
| soraminazuki wrote:
| It depends on which tradition they're talking about. Could it
| predate the rule of law?
| RajT88 wrote:
| I believe the conservative judges use the following process
| flow:
|
| 1. Is the prior precedent what I want? If no, go to 2.
|
| 2. Is the prior precedent consistent with "textualism", i.e.
| can we find enough period writings which use the words in the
| constutition a certain way? If no, go to 3.
|
| 3. Is the prior precedent consistent with "originalism", i.e.
| can we find enough period writings which suggest some people
| peripherally or directly involved with the drafting of the
| constitution (or state constutitions) thought of an issue in
| the same way we want to rule? If no, go to 4.
|
| 4. Rule that way anyways, and just do your best to justify it
| with whatever you dug up for 2 and 3.
| brodouevencode wrote:
| So if something that is seen as a bad idea should be kept in
| place because "that's the way we've always done it"?
| Latty wrote:
| New laws can be passed to put new policy into place and
| change those long-standing things explicitly.
| Drakim wrote:
| Obviously an outright bad idea should not be kept around just
| because that's how we have always done it, but don't
| underestimate the value of predictability and stability.
| Society can't operates if laws change every day, even if it's
| driven by a desire to make the laws better.
| Molitor5901 wrote:
| "Obviously an outright bad idea should not be kept around
| just because that's how we have always done it.."
|
| But who decides that? Laws do NOT change every day and I
| look forward to your examples of that. The problem is that
| laws _are not_ changing, and legislators are depending on
| the courts to do the hard work for them.
| saint_fiasco wrote:
| > Society can't operates if laws change every day
|
| Funny you should mention that. Gorsuch wrote the exact same
| thing while arguing in favor of overruling Chevron. You can
| find it by Ctrl+F-ing the string "though the laws do not".
|
| > "Chevron's fiction has led us to a strange place. One
| where authorities long thought reserved for Article III are
| transferred to Article II, where the scales of justice are
| tilted systematically in favor of the most powerful, where
| legal demands can change with every election even though
| the laws do not, and where the people are left to guess
| about their legal rights and responsibilities"
| neaden wrote:
| Most of the decisions that get to the Supreme Court could
| reasonably be decided either way. If they were simple, clear
| decisions they wouldn't make it to the highest court after
| all. I don't necessarily think the original Chevron decision
| was the "correct" choice, or the "incorrect" choice, but it
| was the choice that was made and for 40 years Congress wrote
| laws and funded agencies on the assumption that that is how
| things would continue to work. If it had been decided
| differently all those years ago, then 40 years of laws would
| have been written differently. It's like the standard plug in
| the US. Was that the objectively correct choice for what a
| plug should look like? No. Is there possibly a better
| configuration that some other country is using? Yes. Would it
| be worth it to make the change now and make everyone in the
| country change all of their plugs and electronic devices? No.
| nradov wrote:
| In any of those laws Congress passed in the past 40 years
| they could have taken the opportunity to codify the
| original Chevron decision into law. So the fault for any
| disruptions or bad outcomes lies entirely with them. Voters
| who are unhappy with the situation should complain to their
| members of Congress.
| EricDeb wrote:
| No but this is not a bad idea. Why should congress have to be
| experts and pass hyper specific laws for every aspect of a
| government agency rather than just deferring to experts?
| stronglikedan wrote:
| Because those experts haven't been able to craft
| unambiguous laws that aren't up for interpretation. There's
| nothing stopping congress from deferring to those experts
| still.
| nradov wrote:
| If Congress lacks expertise on a particular topic then they
| can front load the process and seek expert input, then
| write that into the legislation. There's no need to
| delegate that to the Executive branch for interpretation
| after the law has been passed. This might slow down the
| pace of legislation, which would be fine.
| EricDeb wrote:
| The current pace of legislation is glacier slow
| nradov wrote:
| Which is fine. Legislation shouldn't be rushed, and the
| default should be to do nothing.
| ceejayoz wrote:
| There should be a very high threshold for "we're pressing the
| reset button on a regulatory infrastructure built on decades
| worth of precedent, #yolo!", yes.
| chasd00 wrote:
| > There should be a very high threshold..
|
| there's no higher threshold in the US than a US Supreme
| Court decision
| ceejayoz wrote:
| The _Court 's threshold_ for doing this should be higher
| than this decision implies.
| lurking15 wrote:
| it's funny how progressive turn into conservatives, as though
| we need to cement whatever happened in the 70s
|
| things clearly took a turn for the worse since then in many
| fundamental ways specific to the progressive "revolutions"
| 2OEH8eoCRo0 wrote:
| To paraphrase Linus: If it's a bug that people depend on then
| it's not a bug- it's a feature.
| spanktheuser wrote:
| Long term, I wonder if this destroys the Supreme Court. I see
| no reason why a future liberal majority would feel bound by any
| conservative precedent in the future. Replace respect for
| precedent with whatever position wins a majority and the
| incentive to pack the court seems irresistible.
| maxwell wrote:
| Seems like we're evolving from common to civil law, probably
| for the better in the long run.
| kergonath wrote:
| I tend to agree that civil law should be better over the
| long term, but I don't see this Supreme Court letting that
| happen. They pretend to be deferent to congress when
| congress is ineffective or on their side, but the script
| can be easily flipped or used both ways at the same time
| like they do with states rights. But ultimately they would
| not let themselves be constrained by a hostile congress.
| maxwell wrote:
| This Court seems to be reducing both executive and
| judicial power, pushing it back to the legislature where
| it belongs.
|
| But we now have worse representation in the United States
| than in Communist China, we're an extreme outlier among
| every OECD country, and this Congress is close to doing
| literally nothing:
|
| https://en.wikipedia.org/wiki/List_of_acts_of_the_118th_U
| nit...
|
| So the result will be reducing federal power itself,
| kicking it back to the States. You know, laboratories of
| democracy. And now seemingly autocracy and theocracy as
| well...
| ttyprintk wrote:
| And this would be true for any activist court. To me, the
| combination of a flaccid Congress plus activist court implies
| an era of disposable precedents.
| silverquiet wrote:
| How do you imagine a liberal majority would come about within
| the next few decades? This was engineered over decades and
| now the conservatives have all the marbles; that's why they
| feel so free to rule how they've always wanted.
| spanktheuser wrote:
| I imagine you'd need circumstances similar to those that
| nearly resulted in the Judicial Procedures Reform Bill of
| 1937, which would have granted Roosevelt the ability to
| appoint 6 additional Supreme Court Justices. Namely:
|
| - National crisis unifying popular support for liberal
| legislation. - Liberal control of the executive and
| legislative branches. - A series of supreme court rulings
| that effectively thwart a popular liberal agenda.
|
| I have no idea if this is likely; however it nearly
| happened less than a century ago during a period with
| noticeable parallels to our circumstances today.
| AnimalMuppet wrote:
| There was a 7-2 liberal majority during the 1970s. They
| didn't feel bound by precedent either. That's how we got, for
| example, _Roe v. Wade_. (No, there was no precedent for "a
| penumbra" of privacy giving a right to abortion in any
| previous court decisions. And whether you _like_ the decision
| is orthogonal to whether the court was making stuff up
| completely outside the realm of precedent.)
|
| Conservatives aren't doing something that liberals have not
| done. Liberals will probably do it again when they have the
| chance. And so will conservatives.
|
| You don't have to like it, either because it goes against
| what you want or because you don't think decisions should be
| made like that. But don't think that this hasn't happened
| before.
| mullingitover wrote:
| > There was a 7-2 liberal majority during the 1970s.
|
| Can you break this down? I'm looking at the Martin-Quinn
| graph[1] for the 70s and I'm seeing a pretty centrist, if
| not majority conservative, slant for that decade.
|
| [1]
| https://en.wikipedia.org/wiki/Martin%E2%80%93Quinn_score
| rootusrootus wrote:
| That seems likely. We already see it in the executive, with
| sweeping policy changes every time the office changes
| parties. Seems to be what we want, however, collectively.
| throwawa14223 wrote:
| The pendulum swings. For decades we had an activist
| progressive court and now we have an activist conservative
| court.
| nradov wrote:
| That is a feature, not a bug. Supreme Court decisions are
| informed by precedent, not bound by precedent. If that creates
| chaos it's not their fault. Blame the legislators who wrote bad
| or vague laws in the first place. If the laws were sufficiently
| clear and specific then the Supreme Court wouldn't have much
| work to do.
|
| And let's not have any ridiculous claims that the Supreme Court
| needs to legislate from the bench because Congress is
| dysfunctional. In most of the areas where Congress has failed
| to pass new or revised laws there are real divisions or lack of
| consensus in the country. It's more important to preserve our
| Constitutional separation of powers even if that leads to bad
| outcomes on particular issues.
| delecti wrote:
| The US is a common-law country. By stare decisis, the courts
| are indeed supposed to be _bound_ by precedent.
| tivert wrote:
| > The US is a common-law country. By stare decisis, the
| courts are indeed supposed to be bound by precedent.
|
| And that doesn't work, and it didn't even work _to start_.
|
| IIRC, in Britain, before the US was independent, "common
| law" became so unworkable and and unjust because the courts
| were so rigidly "bound" by precedent (like you advocate),
| that a whole other system of law "equity" was created.
| nradov wrote:
| You have misunderstood. The Supreme Court isn't bound by
| _stare decisis_. They are free to overturn precedent if
| they have appropriate rationale.
|
| https://www.americanbar.org/groups/public_education/publica
| t...
| rufus_foreman wrote:
| >> This court continues to make decisions that might be
| defensible if you were making them for the first time, but go
| against decades of precedent
|
| The Roberts court has overturned fewer precedents per term than
| any court going back to at least the Warren court which began
| in 1953. If your criteria for evaluating a court is respect for
| precedent, you should consider the Roberts court to be a
| candidate for greatest of all time.
| rootusrootus wrote:
| What I'm hearing is that qualitative is clearly more
| important than quantitative.
| tivert wrote:
| > What I'm hearing is that qualitative is clearly more
| important than quantitative.
|
| I'm hearing a lot of "my-side likes this, therefore
| changing it is wrong." Liberals think it's the highest
| expression of the beauty of our republic when precedent is
| overturned to take things in a more liberal direction; but
| when precedent is overturned to take things in a different
| direction, they think it's an unjust violation of stare
| decisis and get outraged.
|
| As understood (by liberals), the courts are a ratchet that
| moves things from less liberal to more liberal. To go the
| other way is evidence of inexcusable corruption and a
| threat to democracy itself, warranting urgent and extreme
| action to save society.
| rootusrootus wrote:
| > To go the other way is evidence of inexcusable
| corruption and a threat to democracy itself, warranting
| urgent an extreme action to save society.
|
| So we live in interesting times. Great.
| FireBeyond wrote:
| And to listen to many conservatives, any time a left-
| leaning decision is made by the court, we are one step
| closer to chaos, anarchy, depravity, fire and brimstone
| and the apocalypse.
|
| Don't act like complaints about the courts are just
| liberal tantrums.
| tivert wrote:
| > Don't act like complaints about the courts are just
| liberal tantrums.
|
| They're not usually so much tantrums as biased,
| hypocritical argumentation developed backwards to arrive
| at the politically desired result.
| FireBeyond wrote:
| Again, s/liberal/conservative/g and you get a comment
| just as accurate. But do continue to beat the "liberals
| suck" drum.
| tivert wrote:
| Except it wouldn't apply to _this_ thread or the reaction
| to _this_ event.
|
| If you're being a jerk, and I'm commenting on _your_
| behavior, I 'm not making any kind of error if I don't
| mention how Steve was being a jerk two weeks ago. And
| honestly, insisting that I talk about Steve would be an
| effort to deny responsibility and distract from your own
| behavior.
| ImJamal wrote:
| How long as separate but equal a precedent? How many laws were
| made with that assumption in mind?
|
| Just because something is a precedent doesn't mean it is good
| or should continue.
| saboot wrote:
| It's not even years of precedent, they contradicted themselves
| on this decision today in their separate ruling on allowing
| public sleeping bans. Roberts said "Why would you think that
| these nine people are the best people to judge and weigh those
| policy judgements?". SCOTUS follows tradition when it suits
| their lobbied interests, and disregards tradition if it
| contradicts them.
| spiderice wrote:
| > Why would you think that these nine people are the best
| people to judge and weigh those policy judgements?
|
| A really really good question. And completely compatible with
| this ruling.
| cryptonector wrote:
| You should read Gorsuch's concurrence. It's all about the
| meaning of "common law" and "stare decisis". It's quite
| educational and even eye opening.
| shmerl wrote:
| Enabling corruption seems to be the primary agenda of this court
| these days.
| aaronbrethorst wrote:
| That seems unfair. They're equally committed to denying women
| bodily autonomy.
| netsharc wrote:
| Amazing how the US approaches Taliban Afghanistan step-by-
| tiny-step (and sometimes with giant leaps, e.g. by electing
| Trump). It's incredible (i.e. "too extraordinary and
| improbable to admit of belief") that about half the country^W
| voters think that lot is the best to lead their country...
|
| As to what corruption will bring:
| https://www.newyorker.com/magazine/2015/01/19/corruption-
| rev...
|
| There's also no denying that the alternative party also has
| its own corruptions, which turn off voters..
| 01HNNWZ0MV43FF wrote:
| Yep. Please remind your friends in Arizona to vote
| https://www.explainxkcd.com/wiki/index.php/2380:_Election_Im...
| chatmasta wrote:
| Wouldn't corruption be more likely to arise from a system where
| courts defer their decisions to mega-corporations and federal
| agencies?
| relaxing wrote:
| Unlike SCOTUS federal agencies actually have to follow codes
| of ethics.
|
| Deferring to megacorporations is in fact the outcome here
| since the justices know Congress will not act.
| raytopia wrote:
| How much is this going to mess up the ability for the federal
| government to operate?
| reaperman wrote:
| If Congress had a decent velocity/agility it would probably be
| okay. But their inability to pass laws in a timely fashion will
| make it very challenging for the federal government to keep up
| with societal changes.
| kergonath wrote:
| Get ready for more of this sort of things being hidden in
| massive budget laws voted along party lines.
| mywittyname wrote:
| The hope from conservatives seems to be 100%.
| rootusrootus wrote:
| There must be a great deal of tension within the right. On
| the one hand, some undoubtedly consider themselves small
| government libertarian types, but the recently ascendent MAGA
| folks are decidedly authoritarian and absolutely willing to
| use the federal government as a weapon against their
| perceived enemies. This sort of ruling helps the former but
| not the latter.
| jandrese wrote:
| There is no tension.
|
| "Conservatism consists of exactly one proposition, to wit:
| There must be in-groups whom the law protects but does not
| bind, alongside out-groups whom the law binds but does not
| protect." -- Francis M. Wilhoit
|
| Viewed through this lens the actions are completely
| consistent.
| mindslight wrote:
| This quote can be helpful for analyzing many situations.
| But applied generally it throws the baby out with the
| bathwater - people who legitimately want small
| government, and aren't merely using libertarian precepts
| as cover for an authoritarian agenda.
|
| (as an aside I think if you're in the libertarian camp
| but yet still supporting 2024's radical republican party
| you're either hoping for outright societal collapse or
| you're gravely mistaken about what it now stands for)
| kergonath wrote:
| > people who legitimately want small government, and
| aren't merely using libertarian precepts as cover for an
| authoritarian agenda.
|
| AKA useful idiots. The fundamental debate between big
| versus small government is deceptive. What we really need
| is effective and efficient government (roughly in that
| order, in my opinion). Sometimes that is big, sometimes
| that is small.
| mindslight wrote:
| I agree on the "effective and efficient" point. I'd say
| the deception mainly arises out of ignoring that
| corporations have formed de facto government. That's the
| fundamental contradiction that causes the banner of
| "individual liberty" be transmuted into "corporate
| liberty", still ultimately denying freedom to
| individuals.
|
| So I do not agree with the "useful idiots" blanket
| characterization. It seems needlessly divisive, when what
| people who've become myopically focused on the nominal
| government need is to see the larger picture whereby
| corporations that capture markets, collude, and create
| externalities also _independently_ destroy individual
| liberty. Not solely by regulatory capture, or otherwise
| enabled by the nominal government, but rather entirely on
| their own due to the fact that markets _are not_ entirely
| efficient (P != NP).
| mindslight wrote:
| *reactionaries. "Conservatives" is now more of an appropriate
| label for the other party. I'm not making a judgement about
| whether this particular state of things needed to be
| conserved or shook up, just about the use of labels that
| imply wanting to preserve the status quo for groups that want
| to radically change it.
| torstenvl wrote:
| That depends. The parts of the federal government that follow
| the most straightforward and reasonable interpretation of the
| law? None. Those that are despotic and issue novel
| interpretations that turn Americans into felons overnight?
| Let's hope it messes them up quite a bit.
| danlindley wrote:
| It would depend on the scope and extent that operations within
| an agency rely on their interpretation of the law. It will
| certainly be interesting to see the impact once the
| transitional period ends.
| cryptonector wrote:
| Barely at all. The federal government will continue operating
| 99% exactly as before. A few controversial agency decisions
| will get reviewed and overturned, and Congress might even
| address those specifically in legislation, and even better,
| Congress might write better legislation. We'll see agencies
| lobbying Congress, too. But that's it. Few will even notice.
| consumer451 wrote:
| From Justice Kagan's dissent on page 82:
|
| > This Court has long understood Chevron deference to reflect
| what Congress would want, and so to be rooted in a presumption of
| legislative intent. Congress knows that it does not--in fact
| cannot--write perfectly complete regulatory statutes...
|
| > It knows that those statutes will inevitably contain
| ambiguities that some other actor will have to resolve, and gaps
| that some other actor will have to fill. And it would usually
| prefer that actor to be the responsible agency, not a court...
|
| > Put all that together and deference to the agency is the almost
| obvious choice, based on an implicit congressional delegation of
| interpretive authority. We defer, the Court has explained,
| "because of a presumption that Congress" would have "desired the
| agency (rather than the courts)" to exercise "whatever degree of
| discretion" the statute allows. Smiley v. Citibank (South
| Dakota), N. A., 517 U. S. 735, 740-741 (1996).
|
| > Today, the Court flips the script: It is now "the courts
| (rather than the agency)" that will wield power when Congress has
| left an area of interpretive discretion. A rule of judicial
| humility gives way to a rule of judicial hubris. In recent years,
| this Court has too often taken for itself decision-making
| authority Congress assigned to agencies. The Court has
| substituted its own judgment on workplace health for that of the
| Occupational Safety and Health Administration; its own judgment
| on climate change for that of the Environmental Protection
| Agency; and its own judgment on student loans for that of the
| Department of Education.
| adamc wrote:
| Our court is now activist in a very regressive way. The ride is
| going to be a very bumpy one until it generates sufficient
| pushback.
| brettcvz wrote:
| This seems like the judicial branch just voted to give itself
| substantially more power.
|
| Are there any checks against this? Or can justices just keep
| granting themselves more powers and invalidating any
| restraints?
| blackeyeblitzar wrote:
| No, that isn't the case. It is saying that regulatory
| agencies cannot exceed their authority and act like the
| judicial branch. In other words, it was the executive branch
| that had taken more power previously.
| HelloMcFly wrote:
| > In other words, it was the executive branch that had
| taken more power previously.
|
| If I may disagree: it was the legislature that gave the
| executive branch power, and the judicial branch that
| essentially approved such an arrangement (unanimously) in
| the original Chevron ruling.
| tivert wrote:
| > If I may disagree: it was the legislature that gave the
| executive branch power, and the judicial branch that
| essentially approved such an arrangement (unanimously) in
| the original Chevron ruling.
|
| But the only way to properly do that is a constitutional
| amendment.
|
| To give an extreme though-experiment example: Lets say
| Congress 1) packed the Supreme Court with yes-men, 2)
| passed law giving themselves a huge pay raise and
| delegating all legislative powers to the President, while
| they go party. Didn't it just create a a king/dictator?
| Wouldn't that be unconstitutional?
| HelloMcFly wrote:
| > But the only way to properly do that is a
| constitutional amendment.
|
| A constitutional amendment make it permanent, but
| Congress never actually lost control. They always had the
| power - and still do - amend, restrain, clarify their own
| laws.
|
| > Didn't it just create a a king/dictator? Wouldn't that
| be unconstitutional?
|
| In a scenario with a packed Supreme Court of "yes men"
| there are no bounds to what could happen, so why bother
| with the thought experiment? In your example, the
| constitution is already worthless.
| rswail wrote:
| Not "taken". It was inherently _granted_ by Congress on the
| _joint_ understanding that the intent was that agencies
| would engage in rule making to decide areas left undefined
| within the scope of the law as written.
|
| Regulatory agencies are responsible to Congress, the
| Legislative Branch that has the power to adjust the law to
| reflect its intent. Judges are not. The understanding is
| that it is the agencies that are intended to have the best
| understanding of what they regulate, not judges.
|
| Laws were written with this assumption in place, which the
| Court has just rug-pulled from the operation of the US
| government.
| tzs wrote:
| No it isn't.
|
| What Chevron said was that when the legislative branch
| gives an agency power to do X and there is some
| disagreement between the agency and someone else over
| precisely what X means and the agency's interpretation is
| reasonable the courts should use the agency's
| interpretation.
| throw0101c wrote:
| > _It is saying that regulatory agencies cannot exceed
| their authority and act like the judicial branch._
|
| On any given matter there are, at first, no laws on a given
| subject. Before airplanes were invented there were no rules
| or regulations for airplanes (FAA); similarly, pre-radio,
| nothing about how to use EM fields (FCC).
|
| Now, The (US) People gave The Congress authority to make
| laws on any subject (limited only by the Constitution).
|
| Congress said we will make laws limited actions on Topic X,
| and when non-prohibited actions are done they must be done
| in certain ways as prescribed by regulations. Congress
| further said that they cannot, ahead of time, know every
| situation that might arise on Topic X, but further rules
| may be needed.
|
| So Congress _delegated_ further rule making, beyond the
| 'base' _An Act to Regulate Topic X_ , to an agency that
| _Congress itself created_ and funded via the above _Act_.
|
| An agency _only exists_ because it was created by Congress;
| it only runs because it is _funded by Congress_. Congress
| says, in particular Acts, that some agency should look
| after the details of Topic X so Congress does not have it.
|
| Regulatory agencies have (limited) authority because _it
| was given to them_ by The People (through their elected
| representatives).
| parhamn wrote:
| > So Congress delegated further rule making
|
| Couldnt they just do this formally? Afaict scotus didnt
| rule it's unconstitutional for congress to explicitly
| defer, but the derefence, which originated in court
| precedent, isn't good.
|
| Theres nothing stoping congress from explictly defering
| either via act or in the act. Right?
| bombcar wrote:
| Read the judgement, it's pretty simple.
|
| All this says is that _if_ Congress defers something to a
| branch, _and_ there is ambiguity, _and_ it comes in front
| of a judge, the judge does NOT have to accept the branch
| 's interpretation of the ambiguity, and can instead judge
| it as judges do.
|
| Chevron said that if the branch had a reasonable
| interpretation (e.g, not batshit insane like saying "no
| arsenic in water" means "at least ten pounds per gallon
| of arsenic in water") then the judge should defer to it.
| Now the judge _can_ but does not _have to_ defer to it -
| if he pushes back, Congress can clarify the law.
|
| This has been done many times in the IRS, where people
| find a "loophole", the IRS tries to patch it themselves,
| the courts say, yeah, nah, and then Congress amends the
| law to remove it.
| parhamn wrote:
| It isn't simple. The judgement states that broad implied
| deference to the agency of the act in question, per
| Chevron, is incorrect and the courts decide in the those
| case.
|
| There were a ton of arguments that interpretation, in
| general, is an Article 3 right of the courts. Though, I'd
| assume if congress explicitly granted interpretation to
| the specific agency of the act, we'd have a separate case
| on whether they're allowed to do that (explicitly defer).
| throw0101c wrote:
| > _All this says is that if Congress defers something to
| a branch, and there is ambiguity, and it comes in front
| of a judge, the judge does NOT have to accept the branch
| 's interpretation of the ambiguity, and can instead judge
| it as judges do._
|
| So the Judicial branch has now taken on the task of
| determining policy, _contra_ what was said in _Chevron_ :
|
| > _When a challenge to an agency construction of a
| statutory provision, fairly conceptualized, really
| centers on the wisdom of the agency 's policy, rather
| than whether it is a reasonable choice within a gap left
| open by Congress, the challenge must fail. In such a
| case, federal judges--who have no constituency--have a
| duty to respect legitimate policy choices made by those
| who do. The responsibilities for assessing the wisdom of
| such policy choices and resolving the struggle between
| competing views of the public interest are not judicial
| ones: "Our Constitution vests such responsibilities in
| the political branches."_
|
| * https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._N
| atura...
|
| So if Congress makes something explicit it is a policy by
| The People (through their elected representatives), and
| if there's some ambiguity it might be done _purposefully_
| by The People 's representatives (Congress), with the
| explicit and implicit idea to have an agency deal with
| it. The agency is run by The People's Executive choice
| (President) or administrators (Secretary, Director, _etc_
| ) agreeable to The People's representatives (via
| confirmation hearings).
| p_l wrote:
| A textualist interpretation would be that indeed congress
| is now stopped from that, as anything that isn't
| described without doubt in an act of congress is now up
| to court to decide, not delegated agency.
| bell-cot wrote:
| Obvious check #1: Congress gets its sh*t together, and stops
| writing endless vague blather into law.
|
| Obvious check #2: Congress enlarges the Supreme Count to 21
| Justices. And lets the President know that his nominees for
| the 12 new positions will need to understand who's the real
| boss.
| dubcanada wrote:
| Why stop at 21, why not get 1 supreme court from each
| state? You could get 2 if you wanted to be spicy and setup
| a sort of room for them all to debate in. Then after they
| heard the debates they could vote on the matter and if it
| passes it gets written into law. A sort of congress...
| bell-cot wrote:
| I was thinking "enough to routinely overrule the current
| 9 Justices".
|
| Representing individual states, as such, is supposed to
| be the job of Congressmen. And - with how low-functioning
| Congress is looking, these days, patterning anything new
| after them is probably a bad idea.
| AnimalMuppet wrote:
| So Congress is dysfunctional. The Supreme Court is semi-
| functional, but functioning in a way that you don't like.
| So you want _Congress_ to vote in a bunch of new people
| to fix the Supreme Court. Why do you think that will
| work, instead of be ruined by the usual Congressional
| dysfunction?
|
| And, if the party in power adds enough Supreme Court
| justices to routinely overturn the current 9, what makes
| you think that when the other side is in power, they
| won't add enough to overturn your 12?
|
| The Supreme Court is not supposed to bend with the wind
| of every political election. It's by _design._
| vlovich123 wrote:
| > The Supreme Court is not supposed to bend with the wind
| of every political election. It's by design
|
| Funny. Seems like it bent pretty hard in the last
| election. Why should we only honor the bends to the
| right?
| r2_pilot wrote:
| Particularly given McConnell's... Interpretations... Of
| how his obligated duties were fulfilled in regards to the
| timeliness of actions taken to ensure that such seats
| were filled.
| luxuryballs wrote:
| did it though?
| vlovich123 wrote:
| Are you asking if it did bend to the right? You're asking
| if an additional conservative vote shift in a hairline
| composition shifted the balance? Would you be asking the
| same if it was a 6-3 liberal majority?
|
| This courts been in power for 8 years and has overturned
| 3 major ways that the government operates:
|
| 1. Roe v Wade overturned so that the government is back
| in charge of reproductive rights decisions instead of
| leaving it as a deeply personal decision for a family to
| make on their own. There's pretty clearly a lack of any
| evidence that late term abortions are a cavalier thing.
| When it gets that late it's not a change of mind thing
| 99.999% of the time.
|
| 2. Brady and similar decisions basically removing
| congress' and states' abilities to regulate guns
|
| 3. Chevron doctrine overturned so unless congress writes
| impossible laws the courts get to arbitrarily define
| ambiguities even though it was delegated to the executive
| to create justifiable well researched exposition of those
| ambiguities.
|
| Basically, this court has already delivered 3 major
| decisions shifting American politics in pretty drastic
| ways in the 8 years. This is certainly not a liberal or
| status quo court.
|
| And the court itself has serious perception issues of
| accepting gifts and bribes (and significantly reducing
| the definition of what counts as corruption in the first
| place, which is well outside their mandate considering
| these are actually laws congress passed). They're badly
| in need of cultural reform as is congress and in both
| scenarios adjusting the number of representatives and the
| number of justices is called for to relieve the pressure
| that's been building.
| ebiester wrote:
| You act as if this is the first time that expanding the
| court has been discussed.
|
| Congress has yet to do this because it will never pass -
| at least unless one party gets a filibuster-proof
| majority in the senate or the filibuster is removed.
| bell-cot wrote:
| > The Supreme Court is not supposed to bend with the wind
| of every political election. It's by _design_.
|
| Looking at a few Supreme Court's rulings, say -
|
| https://en.wikipedia.org/wiki/Bush_v._Gore
|
| https://en.wikipedia.org/wiki/Trump_v._Anderson
|
| - I'd be inclined to say that the Supreme Court's
| _design_ is to bend the results of every political
| election to suit their own wishes.
| intended wrote:
| >The Supreme Court is not supposed to bend with the wind
| of every political election. It's by design.
|
| The design that can and has been undermined and bent on
| partisan lines, because of a dedicated campaign to
| achieve this very goal?
| tshaddox wrote:
| Increasing the size of the court isn't a slippery slope
| to somehow making justices elected by states/districts.
| It's not like as soon as you get too many justices it
| turns into a legislature.
|
| The interesting differences between the legislative and
| judicial branch is not the number of people (moreover,
| the Supreme Court is not exactly the entirety of the
| federal judicial branch).
| AnimalMuppet wrote:
| > And lets the President know that his nominees for the 12
| new positions will need to understand who's the real boss.
|
| And who, in your view, is supposed to be the real boss?
| Congress? Or the President?
|
| The Supreme Court is supposed to be _independent_. Changing
| that needs a _much_ higher threshold than "bell-cot
| doesn't like some recent Supreme Court decisions".
| blacksqr wrote:
| I have a fantasy solution that I know will never be
| implemented, but in my mind resolves all objections to
| expanding the court.
|
| Promote all eleven judges in the DC circuit court of
| appeals to the Supreme Court and leave the appeals court
| empty. For each vacancy that occurs on the Supreme Court,
| the president gets to pick one judge for the appeals
| court, until the Supreme Court justice count is back to 9
| and the appeals court judge count is back to 11; at which
| time things go back to status quo ante.
|
| This would allow the Supreme Court to be rebalanced
| without the president packing the court with partisan
| choices. Rather, it respects the record of judicial
| confirmations for the appeals court going back almost 40
| years and several presidential administrations.
|
| It would increase the number of perspectives on the court
| and make the Justices work harder to find consensus,
| rather than the majority being able to lazily fall back
| on pet legal theories that are out of the mainstream.
|
| It would counter and largely nullify the Republican
| strategy of targeting the Supreme Court with nomination
| of extremist and underqualified candidates with
| significant questions about their backgrounds, and
| confirming the nominees with dubious political
| maneuvering.
|
| It would be hard for Republicans to escalate; i.e., if a
| Democratic president added 12 slots to the Supreme court,
| what's to stop a Republican president and congress adding
| 20 more at first opportunity, and so on. Republicans
| could choose to elevate another court's judges to the
| Supreme Court, but that would tend to further balance the
| Court and make decisions more unpredictable, rather than
| produce a clear partisan advantage.
|
| It would take the Supreme Court nomination issue out of
| presidential politics for a generation.
| themaninthedark wrote:
| Exactly, the statement is very telling of the lack of
| understanding of how our government is supposed to
| operate, how and why the system is set up the way it is.
| refurb wrote:
| Indeed.
|
| Despite FDR being quite popular with his New Deal laws,
| his own party was prepared to toss his ass out for trying
| to stack the Supreme Court in order to keep parts of his
| New Deal alive.
|
| It would be political suicide for either side to do that.
| r2_pilot wrote:
| > It would be political suicide for either side to do
| that.
|
| Used to be, in my opinion. Now I'm not so sure if parties
| that pursue power uber alles would face any consequences.
| AnimalMuppet wrote:
| Complaining people have been suggesting it for a long
| time. They seem to be of the "anyone who doesn't agree
| with me is obviously either stupid or evil" type.
|
| I'm with you, though, that it feels more possible than it
| ever has before. If it does actually happen, it's going
| to be a huge change. The Supreme Court will no longer
| have any believable claim of being unpartisan, and
| democratic norms will be broken in a much broader way
| than ever before (barring January 6).
|
| So if it happens, take note. America after that won't be
| what it was before it.
| vundercind wrote:
| One-per-circuit, at least, would be a good change. Not as
| many as you're proposing, but does make sense.
| rootusrootus wrote:
| Congress would have to agree that the power really belongs
| with them, and agree to limit the Court to only that which is
| covered in Article III. This is entirely plausible, but I
| think unlikely in the short term.
| remarkEon wrote:
| >granting themselves more powers and invalidating any
| restraints?
|
| You should read the actual opinion, because that's not what
| happened here.
| Xeoncross wrote:
| If you ignore the labels here, it's a small group of lawyers
| giving themselves more power because the large group of
| politicians can't get their act together and pass well-
| reasoned and descriptive laws.
|
| So the large body isn't functioning well and the small body
| doesn't trust it anymore. So if we make the small body (the
| supreme court) large like the large body (congress) will that
| actually fix the issue?
|
| Isn't the issue that politicians are corrupt and ignorant of
| actual expertise in the areas of the laws they pass? How will
| the Supreme Court overcome this same issue?
| matthewdgreen wrote:
| Congress may be inefficient (by design, basically) but they
| have one advantage: they're _elected_. Everyone fantasizes
| about government by an unelected group of experts, until
| they wake up one day and find out those unelected experts
| don 't share their values at all -- and there's nothing
| they can do about it.
| ElevenLathe wrote:
| The courts _could_ reflect the values of elected
| officials. This is in fact a major strategy of the Right
| for about a generation, and is working great for them. It
| 's only Liberals, who seem to be allergic to power, who
| have handcuffed themselves and decided that "packing the
| courts" (a loaded way to refer to the totally reasonable
| practice of appointing people from your own team to the
| bench so that they outnumber those from the other team)
| is somehow incompatible with democracy.
| psunavy03 wrote:
| The totally reasonable practice of "I lost the game, so
| I'm going to flip over the table and pull a gun."
| Arainach wrote:
| When your opponents are lying, cheating, and breaking
| their own made up rules (no supreme court nominees during
| the lame duck session unless nominated by a Republican)
| your characterization is uncalled for.
| immibis wrote:
| Yes, the right have been doing it for a long time and it
| works. Either make it stop working, or copy the thing
| that works. Don't just handicap yourself to a guaranteed
| loss.
| ElevenLathe wrote:
| Nothing in the rulebook says a {dog,Democrat} can't {play
| basketball,appoint liberal judges}.
| thyrsus wrote:
| Tell that to Merrick Garland and Mitch McConnell.
| immibis wrote:
| But they don't.
| ElevenLathe wrote:
| The rules are that the executive can appoint judges.
| Right wing executives take advantage of this rule. Doing
| the same from the other corner seems reasonable too. The
| failure to do so means that the Democratic party is
| incompetent, uninterested in enacting their own alleged
| policies, or some combination of the two.
|
| Some people say "if you're not cheating, you're not
| trying" but this is even a level removed. This is a
| perfectly legal move that they've denied themselves for
| no material reason.
| mistrial9 wrote:
| superficially this argument seems reasonable.. but my
| limited understanding of the history of the Supreme Court
| of the United States says that there have been
| substantially different eras, and substantially different
| rules in those eras, for this same Federal body. Needless
| to say, in a "two party" political system, the details of
| what each of those two parties represents has also
| changed dramatically.. i.e. what is called conservative
| has changed quite a lot, many times.. same with "liberal"
| mschuster91 wrote:
| The Democrats desperately want to keep the moral high
| ground.
|
| With a populace that cares about ethics and morals, that
| would be a sensible strategy, but unfortunately about
| half the voting US population doesn't give a flying fuck
| about either any more.
|
| Additionally, the danger for Democrats going for low
| blows and breaking tradition is that they might lose a
| significant part of _their own_ voters as a result.
| immibis wrote:
| Indeed they have already done so - many left-wing voters
| are swearing off voting for Biden, over his support for
| the Gaza genocide. This guarantees a Trump victory.
| ElevenLathe wrote:
| The issue is that the "ethics and morals" of the powerful
| are in reality weapons pointed at working people. If
| using state power gained through elections to improve the
| lives of the people who elected you is immoral or
| unethical, your system of ethics is a farce.
| wongarsu wrote:
| Appointing people based on party loyalty is always cited
| as one of the major reason the Soviet Union became a
| slow-motion train wreck. It's not something America
| should emulate.
|
| Not to mention that packing the courts could well be
| interpreted as an open attack against the separation of
| powers
| hypothesis wrote:
| > Everyone fantasizes about government by an unelected
| group of experts, until they wake up one day and find out
| those unelected experts don't share their values at all
| -- and there's nothing they can do about it.
|
| Does SCOTUS fit into this hypothetical?
| db48x wrote:
| No, because they neither make laws nor execute them.
| digging wrote:
| This implies the common false dichotomy though that
| public officials can only be either: elected in toxic,
| wasteful campaign cycles every 4 years; or completely
| independent of public oversight. Those aren't the only
| two mechanisms that exist to develop an administrative
| apparatus. They are actually two points on a spectrum,
| and in fact closer to being at either _end_ of the
| spectrum.
|
| One, quick example: You can have appointed experts who
| can be recalled by public input but never have to
| campaign for election. I'm writing this in short minutes
| with zero research so be assured there are countless
| possible systems that exist in the infinite space between
| the two binary options implied by your dilemma.
|
| In other words, being _elected_ to office is not the
| advantage of congress. The advantage we seek is public
| accountability. Public elections are a pretty fucking
| poor proxy for accountability though because we end up
| with single-issue voters acting out of rage and electing
| people who are specifically inept at their job.
| brookst wrote:
| > because the large group of politicians can't get their
| act together and pass well-reasoned and descriptive laws
|
| How do you figure? This ruling says that Congress must be
| domain experts in every area, and agencies must merely
| implement the specific policies that Congress dictates.
|
| Is that even possible? For anyone? Sure, Congress is
| dysfunctional but so what? This new regime is unworkable,
| and it doesn't matter if it's dysfunctional politicians or
| "top lawyers".
| zaphar wrote:
| Congress people are supposed to hire and listen to domain
| experts in the field they legislate on.
| mike_hearn wrote:
| People on this thread are talking as if this decision
| stops Congress delegating powers to the executive, or the
| executive drafting laws for Congress to pass. It clearly
| does neither.
|
| It's actually constitutionally entirely reasonable to
| demand that lawmakers are the people who make law,
| because there's no specific reason to assume that the
| volume of laws should naturally drown the people
| responsible for them. But even if you do assume that,
| nothing in this judgement would restrict the volume of
| laws passed in any way. It's just not about that at all.
| andyjohnson0 wrote:
| The "volume of laws" required to regulate a complex
| modern society is far greater than that required for the
| US 200+ years ago. Thats why successful nations use rule-
| making agencies to regulate commerce, environmental
| protection, workplace safety, etc. Expecting the
| legislature to do it all is just not going to scale -
| which I suspect is the objective. The people behind these
| decisions want an overloaded, ineffectual legal system
| because that creates the best conditions for unrestricted
| accumulation of wealth and power.
| beaeglebeachedd wrote:
| Excellent. Deregulate then. That's the desired effect of
| this anyway.
| somenameforme wrote:
| I think you're missing the ideological motivation. It's
| all about ensuring a healthier system of checks and
| balances. When courts are forced to defer to unelected
| bureaucrats, they serve basically no purpose - yet our
| entire legal system is supposed to be predicated on
| checks and balances at all levels. By returning the
| ability of courts to hear and legally judge the merits of
| law, at their discretion, you help maintain an overall
| healthier system of checks and balances.
|
| It all comes down to centralization vs decentralization.
| In a completely decentralized system you will never have
| an amazing outcome, because there will always be plenty
| of people doing stupid things - this includes judges. Yet
| you will also never have a horrible system, for basically
| the same reason - there will always be plenty of people
| doing 'smart' things. By contrast, centralized systems
| can yield a complete utopia under the oversight of
| socially motivated, intelligent, and highly capable
| leadership. Yet they can also yield the most unimaginably
| horrific dystopias under self centered, foolish, and
| incapable leadership.
|
| So which does one prefer? In the end I suspect this is
| one of those issues where we all think other people think
| the same, but they most certainly do not. I personally
| could not imagine anything other than a system
| decentralized, to its greatest extremes, in every way
| imaginable. Because if I look at the political types of
| modern times "socially motivated, intelligent, and highly
| capable" are not generally the first words that come to
| mind.
| dec0dedab0de wrote:
| Congress could hire their own experts instead of having
| them work for the president.
| starkparker wrote:
| > I would trust the nations top lawyers more than most of
| the congress members we have
|
| If you're referring to the justices, who are approved by
| those Congress members you don't trust, it is a dramatic
| stretch to assume they are the nation's best lawyers.
| TylerE wrote:
| There's no requirement for them to be a lawyer at all, or
| have any legal training.
| masklinn wrote:
| Also congress is full of lawyers.
| jjmarr wrote:
| There's no federal constitutional requirement for
| _anyone_ to have legal training or certification to
| practice law in the USA.
|
| The requirements to practice law in the federal system
| are set by the judiciary itself. This dates back to
| England where getting "called to the bar" meant the judge
| giving you permission to go to a physical bar separating
| the spectators from the court.
|
| It wouldn't make sense to mandate judges to be lawyers if
| they decide who is and isn't a lawyer. That would give
| the judicial branch control over their own appointments.
| TylerE wrote:
| The Supreme Court is explicitly subject to not even that.
| btilly wrote:
| You may trust the nation's top lawyers more than Congress.
| But in recent decades those lawyers have been picked for
| ideological purity in a process that distills what is bad
| about our political process. As a result I now trust
| Congress more than the Supreme Court. And not because I
| trust our broken Congress more than I used to!
| luddit3 wrote:
| This is taking power away from regulator bodies like EPA
| that enforce the laws and giving it to the courts... taking
| the enforcement out of the hands of the experts.
| psunavy03 wrote:
| How is it "taking the enforcement out of the hands of the
| experts?" Judges are supposed to be experts on law.
| That's literally their job. If the parties before them
| feel that they need expert knowledge to render the right
| ruling, then they need to take those experts and either
| depose them or have them testify. Expert witnesses are a
| thing; this is not some new idea.
| adriand wrote:
| > How is it "taking the enforcement out of the hands of
| the experts?" Judges are supposed to be experts on law.
|
| Because the laws are about particular things in the real
| world that have nothing to do with the legal system. They
| are frequently about scientific matters, for example.
| What constitutes a threat to public health? What
| constitutes pollution of a waterway?
|
| When Congress authorizes an agency to maintain, say,
| clean drinking water, it entrusts scientific experts to
| determine, based on the most up-to-date evidence, what
| constitutes a pollutant that is harmful to human health.
| We do not need Congress to pass a new law every time we
| get new scientific evidence that a particular chemical
| (say, PFAS), is harmful.
| psunavy03 wrote:
| > Because the laws are about particular things in the
| real world that have nothing to do with the legal system.
|
| The laws have nothing to do with the legal system? That's
| a new one.
| stale2002 wrote:
| Thats great and all. But if congress wants that power to
| be delegated to those agencies, then they should write a
| law to do so.
|
| Thats all people here want. Whatever power it is that you
| think that agencies should have, try to pass a law to do
| that first.
| masklinn wrote:
| Because this is not law in terms of billy having stolen a
| bushel of apples, and the expert is not called on to
| evaluate the value of the apples in order to determine
| whether billy is below or above the line for a class 3
| misdemeanour.
|
| The statutes regulating agencies are generally broad
| signposts, giving the agency a mission statement and a
| direction but leaving it a large latitude to implement it
| and decide on the details. That latitude has a legal
| implication since the agency is generally responsible for
| setting and enforcing standards.
|
| The Chevron Deference is the legal doctrine that since
| congress delegated its power to the agency _as matter and
| implementation experts_ , the agency's policy decisions
| should be deferred to so long as:
|
| - it's legally ambiguous aka congress has not answered
| the precise issue themselves
|
| - it is a permissible construction of the statute
|
| The entire point of the chevron statute is that it's not
| up to the judicial branch to set government policy, and
| if a problem is a legal void then they have no authority,
| and unless and until congress makes a specific decision
| the agency does.
| intended wrote:
| The courts are HIGHLY ideologically divided.
|
| Take a look at the recent Murthy verdict and Justice
| Alito's dissenting opinion.
|
| The point is to avoid "experts".
| refurb wrote:
| The US is a constitutional republic, not a dictatorship
| of experts. Go to Singapore if you want that.
|
| What I find funny is how the court is simply asking
| Congress to do their job - be clear in the intent of how
| laws should be executed. None of this "well, I'll leave
| it up to unelected bureaucrats to decide" and people
| think this is somehow a bad thing.
| malcolmgreaves wrote:
| > "well, I'll leave it up to unelected bureaucrats to
| decide"
|
| This is not *at all* related to what the Chevron defense
| is about.
| refurb wrote:
| It absolutely is.
|
| "is a legal test for when U.S. federal courts must defer
| to a government agency's interpretation of a law or
| statute."
|
| The idea Congress could pass a law "you can't pollute",
| and then a all of the legal details behind it aren't
| actually a part of the law, but rather "administrative
| decisions" by unelected state apparatus is a run-around
| of the system.
|
| Congress can still pass such laws, and bureaucrats can
| create rules. The only difference is now the courts can
| overturn their interpretation.
|
| How is that not a good thing?
| navigate8310 wrote:
| It looks like the Court may inadvertently cause
| substantial delays in implementing projects due to the
| fear it might instill in bureaucrats.
| saveferris wrote:
| But, this decision didn't take those powers from Congress.
| It took those powers from federal agencies. Congress
| empowers the agencies, yes. But, Congress also deferred any
| technical decisioning to the agencies. Those agencies are
| filled with actual experts who are fully committed to their
| field. Now, the court just said that those experts aren't
| the right place to enforce anything but judges are.
| megaman821 wrote:
| These could easily by Donald Trump's experts soon. And if
| so, will you hold true to this line of reasoning?
| dilawar wrote:
| >Personally, I would trust the nations top lawyers more
| than most of the congress members we have. However, it
| doesn't take much imagination to see the new issues that
| could arise)
|
| Good luck with this.
|
| At least these corrupt politicians come to face the music
| every four years.
| datavirtue wrote:
| These judges need to face election like most judges, and we
| need more. I agree.
| mlsu wrote:
| This might be a cynical view of things, but I think it's
| planned, rather than a happenstance result of dysfunction.
| Gosh gee Willikers, the fellers in congress just can't get
| anything done -\\_(tsu)_/-
|
| It's no coincidence that Republicans simultaneously
| obstruct congress AND have a well-oiled machine to get
| their political allies on the bench. The playbook is like
| this:
|
| - The Federalist Society establishes a pipeline of
| ideologically consistent judges. From law school to the
| supreme court.
|
| - Congress blocks anything and everything on the
| legislative, so that any actual new change to the laws of
| the land come from new interpretations by the courts.
|
| - This bloc in the lower courts works to bubble up good
| cases when they come, to get them before the higher courts.
|
| - Every time there is a Republican in the executive, they
| appoint as many judges as they possibly can from this
| ideological bloc [1]. This ensures that a good case, when
| it comes, has a clear path from the bottom (local) courts
| to the top (supreme) court. The merits of appointees do not
| matter in the selection process - only a pledge of
| ideological fealty.
|
| This project has been actively working for decades to
| change policy. There is _nothing_ like this on the other
| side of the aisle. These are lifetime appointments. You
| cannot win on "good faith" against tactics like this.
| "Good faith" is insisting that the Judicial is "not
| political," it's not stepping down when it's politically
| opportune to do so.
|
| [1] _" At the 2018 Federalist Society gala, Orrin Hatch,
| the former Republican senator from Utah, declared, to the
| crowd's delight, "Some have accused President Trump of
| outsourcing his judicial selection process to the
| Federalist Society. I say, 'Damn right!'"_
| https://www.nytimes.com/2020/05/20/opinion/trump-judges-
| fede...
| shrubble wrote:
| Chevron has only been around since 1984. What was done
| previously?
| mike_hearn wrote:
| The judgement discusses that. Previously in cases where a
| statute was ambiguous the courts interpreted it. Chevron
| changed that to allow the executive to interpret ambiguous
| laws, but the judgement argues that interpretation of the
| law is and always has been the role of the courts.
| enragedcacti wrote:
| Arguably the same thing, from wikipedia:
|
| > Chevron is probably the most frequently cited case in
| American administrative law,[16] but some scholars suggest
| that the decision has had little impact on the Supreme
| Court's jurisprudence and merely clarified the Court's
| existing approach.
| riffic wrote:
| the company, or the case?
| kube-system wrote:
| https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Nat
| ura....
| caseysoftware wrote:
| > "This seems like the judicial branch just voted to give
| itself substantially more power. Are there any checks against
| this?"
|
| Yes, absolutely.
|
| Congress can do their job and write the laws instead of
| delegating their authority to the Executive Branch.
| brookst wrote:
| It seems crazy that Congress does not have the authority to
| delegate implementation details to experts. I just don't
| see anything in the Constitution that forbids that.
| bobthepanda wrote:
| It does, the problem is the law as written doesn't
| explicitly say that and this court is all about
| textualism when convenient.
| adriand wrote:
| Exactly, only when convenient. A glaring example of this
| is when they decided that section 3 of the Fourteenth
| Amendment did not disqualify Trump from the ballot. The
| plain language is not complicated:
|
| ----------
|
| No person shall be a Senator or Representative in
| Congress, or elector of President and Vice President, or
| hold any office, civil or military, under the United
| States, or under any State, who, having previously taken
| an oath, as a member of Congress, or as an officer of the
| United States, or as a member of any State legislature,
| or as an executive or judicial officer of any State, to
| support the Constitution of the United States, shall have
| engaged in insurrection or rebellion against the same, or
| given aid or comfort to the enemies thereof. But Congress
| may, by a vote of two-thirds of each House, remove such
| disability.
|
| ----------
|
| Note that this amendment provides a legislative remedy:
| Congress can remove the disability by a two-thirds vote.
| Textualism, but only when it serves their purposes.
| bentley wrote:
| The case you're referring to, _Trump v. Anderson_ , was
| decided unanimously.
| caseysoftware wrote:
| Are there provisions in the Constitution for one Branch
| to delegate its powers to another?
| freeone3000 wrote:
| There's no rule _against_ it, and it's what Congress has
| done, so it's what's happening.
| caseysoftware wrote:
| Sure there is: Article I, Section 1
|
| _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._
|
| Anything short of "all" contradicts that.
|
| Now you need to find somewhere that says "Oh, btw.. we
| didn't mean 'All' but really 'some' because Congress
| might give some legislative powers to other branches."
| ZoomerCretin wrote:
| Do you understand the implication of the answer to that
| question being "No, and it cannot delegate those powers"?
|
| Congress would have to vote on giving approval for each
| new drug, not the FDA's bureaucrats.
|
| Congress would have to vote on each individual edge case
| for welfare programs (SNAP, Social Security, Medicaid,
| etc), not their respective agencies.
|
| Congress would have to vote on which individual people
| get Pell grants, how much, and how much their parents are
| expected to contribute to their university schooling, not
| the Department of Education.
|
| Congress would have to vote to approve contracts for
| every federal agency.
|
| The federal government would not function without some
| degree of delegation.
| another-dave wrote:
| Legislative powers, not all powers.
|
| You don't change the law every time a new drug gets
| approved, you grant it certification (the framework of
| which is based in existing legislation). You'd only need
| Congress to get involved if you wanted to change the
| approval process itself
| beaeglebeachedd wrote:
| The constitution arguably wasn't designed for a
| government that did much of what it's doing. Shouldn't be
| hard to pass an amendment to legalize it if it's that
| necessary right? We needed an amendment just to federally
| ban booze for God's sake.
| vundercind wrote:
| As explained in the dissent, they literally _have to_
| delegate the kind of authority in question here. It's the
| hostile-genie problem: you _can't_ close all the loopholes
| in some iron-clad unambiguous way in finite space.
| chasd00 wrote:
| those loopholes and ambiguities should be left to the
| courts to decide with representation from both sides of
| the argument making their case and not some department
| head full of political bias and possibly an axe to grind
| favoring one side.
| intended wrote:
| This assumes a US Supreme Court that doesn't exist in
| 2024. If you want it changed, you would have to either
| wait till the judges change, or expand the courts.
| vundercind wrote:
| That's still deferring, just to the courts instead. The
| demand was for Congress to _not_ defer that
| responsibility, and they _literally can't_ do that.
| another-dave wrote:
| Isn't the whole point of the judiciary to interpret these
| ambiguities though?
| vundercind wrote:
| No, their role is a lot larger than that and plenty of
| legal questions don't hinge on this kind of thing. This
| is specifically about whether to tend to defer to
| agencies on the interpretation of definitions of terms
| and similar things related to their mandate, so long as
| they remain within the bounds of reason and plausibility.
|
| A judge could go "nope, per Chevron this EPA
| interpretation of 'pollutant' looks reasonable in this
| context, that complaint is dismissed, but the rest of the
| suit may proceed". Now they're expected to let those
| arguments play out. But answering that particular kind of
| question definitely _is not_ the whole point of the
| judiciary.
| mike_hearn wrote:
| It's worth reading the judgement itself. The court has indeed
| voted to give the courts more power, but not on the basis of
| nothing. It did so because it views it as taking _back_
| powers that were incorrectly /lazily given up without basis
| in what Congress wanted. From the judgement:
|
| _Congress in 1946 enacted the APA [Administrative Procedures
| Act] "as a check upon administrators whose zeal might
| otherwise have carried them to excesses not contemplated in
| legislation creating their offices." Morton Salt, 338 U. S.,
| at 644. The APA prescribes procedures for agency action and
| delineates the basic contours of judicial review of such
| action. And it codifies for agency cases the unremarkable,
| yet elemental proposition reflected by judicial practice
| dating back to Marbury: that courts decide legal questions by
| applying their own judgment. As relevant here, the APA
| specifies that courts, not agencies, will decide "all
| relevant questions of law" arising on review of agency
| action, 5 U. S. C. SS706 (emphasis added)--even those
| involving ambiguous laws. It prescribes no deferential
| standard for courts to employ in answering those legal
| questions, despite mandating deferential judicial review of
| agency policymaking and factfinding_
| consumer451 wrote:
| As a legal dilettante I have some questions: What does this
| decision mean for court caseload going forward? If it will
| increase, how much? Is there budget for that?
| gnicholas wrote:
| It won't affect caseload so much as it will affect the
| balance of power in settlement negotiations. Source: I
| used to be a lawyer who worked in a heavily regulated
| field.
| mike_hearn wrote:
| It doesn't mean anything for court caseload.
|
| There seem to be a lot of posts in this thread that are
| misinterpreting what the judgement means. Here's what I
| understood from reading it:
|
| * This case does not affect Congress' ability to delegate
| defined lawmaking powers to the executive. Congress can
| continue to delegate whatever they want.
|
| * It will therefore not have any impact on the speed with
| which the US government can pass laws.
|
| * It does not award the courts any new powers.
|
| * What it does is go back to the pre-1984 system in which
| the meaning of ambiguous rules were decided by the
| courts.
|
| * It does so on the basis of a specific law called the
| APA, in which Congress spelled out that the courts
| _should_ defer to agencies on matters of fact, but does
| _not_ say courts should defer to agencies on how to
| interpret ambiguous law. Also that law was passed
| specifically to limit the powers of the executive. So,
| their ruling seems founded in the will of Congress.
|
| Because ambiguous rules would have to be decided on
| anyway, and they were already being decided in the
| context of a court case, this won't affect the number of
| cases being decided.
|
| I think the only way to attack this ruling would be to
| show that there was some law that superceded or replaced
| the APA, or that the relevant section of the APA itself
| was unconstitutional. But why would it be? As the court
| points out, the fact that ambiguous law is interpreted by
| the courts is a very old and unremarkable arrangement.
| The Chevron decision was the radical deviation from
| normal practice, reversing it just puts things back to
| how most people already think it works.
| skhunted wrote:
| It takes away power from the legislative and executive
| branches because it now requires an onerous level of
| specificity to regulate something. This decision will
| have lasting negative consequences.
| Retric wrote:
| Case load is simply the number of active cases and
| therefore not limited to the number of cases but also
| includes how long each case takes to complete.
|
| As this requires judges to consider a wider range of
| options it inherently means these cases will take longer
| thus increasing caseload. Further, it also means bringing
| these cases before the court will get more expensive as
| individual cases take longer.
| mike_hearn wrote:
| You're assuming that judges are slower to resolve
| ambiguities than regulators are. My experience with
| regulators has been that often they not only let the law
| be ambiguous for years despite repeated requests for them
| to make a decision, but are then fond of retroactively
| and suddenly "clarifying" things in response to shifting
| political/media winds. Nor do they feel any obligation to
| be consistent with past rulings.
|
| Courts are at least expected to make progress on cases as
| they are brought, to be roughly consistent with past case
| law, and they aren't allowed to just refuse to make a
| decision for a decade and return to it when it's suddenly
| in the newspapers.
| Retric wrote:
| > My experience ... rulings.
|
| None of what you mention really applies to specific court
| cases.
|
| A judge can either defer to the agency involved, or spend
| a while digging into the underlying intent etc. The
| second may be "Better" or "Worse", but if nothing else
| the first is faster.
| consumer451 wrote:
| Another user has raised the other side of my question,
| while exaggerated, is this more accurate as to what will
| happen than the thrust of my original question? Do we
| need to increase the budget for Congressional aides?
|
| > The Roberts Court just decided to increase Congress'
| workload 100000x
|
| https://news.ycombinator.com/item?id=40823343
|
| _meta: this has been one of the most interesting and
| educational threads in recent times. Three cheers for
| HN._
| mike_hearn wrote:
| No, again, I don't understand where commenters are
| getting this idea from. The ruling does not require laws
| to be unambiguous. It only changes who is responsible for
| resolving ambiguity (changes it back). The entire system
| will do about as much work as it was doing before. At a
| stretch, you could say that maybe some funding would need
| to be reallocated from regulators to the courts, but one
| would hope that "cost of interpreting ambiguous laws" is
| not a meaningfully large line item in the US government
| budget.
|
| Now leaving the specific judgement aside for a second,
| IMHO - not worth much as an outsider - Congress certainly
| should write more precise laws and maybe hire more aides
| to help them do that. All governments could do better on
| that front. Clear law is worth its weight in gold for
| creating a stable and prosperous society because when
| people know what they can and cannot do it's less risk to
| create new companies, less risk to create new products,
| and less time is spent in courtrooms arguing disputes
| caused by ambiguity. A lot of people commenting on this
| thread seem to fear a general breakdown if lawmakers are
| required to do a better job of writing law, but my
| personal experience of regulation (limited but not zero)
| has been that laws that have gone via a parliament or
| Congress are already higher quality than administratively
| issued regulations. The idea that the former are written
| by incompetents and the latter by experts is an intuitive
| one, but doesn't seem to be borne out in practice.
|
| Also, as a general aside, I think Americans should
| appreciate Congress more than they do. It's popular to
| take a dump on them but if you compare to other
| governments around the world US law is fairly high
| quality. A big part of the success of the US economy and
| tech industry is related to what Congress does and
| doesn't do. For example the DMCA was unpopular when it
| passed but it laid the foundation for the dominance of
| Silicon Valley today. Apparently most Americans like
| their own Congressman/woman even whilst feeling the
| institution itself does a bad job, but this may just
| reflect the fact that America is very large and diverse,
| so inevitably a talking shop where people from different
| parts spend all day disagreeing with each other will seem
| dysfunctional.
| skhunted wrote:
| I think you are missing the big picture. This ruling is
| setting the stage for a new regulatory regime. The lower
| courts see where this Supreme Court is going and they are
| going to overturn any regulatory ruling that has any
| semblance of ambiguity in the underlying law. What
| matters is the direction the court is going and what it
| is signaling with this ruling.
| bumby wrote:
| > _Because ambiguous rules would have to be decided on
| anyway_
|
| I think the implication by the OP was that they would now
| have to be decide _by the court_ instead of _by the
| executive branch agencies_. Previously, those agency
| decisions could be brought to the court, but they didn 't
| have to for an interpretation. That seems like a subtle
| but important nuance.
| ZoomerCretin wrote:
| The constitution very explicitly grants Congress the right
| to strip jurisdiction from the federal courts.
|
| https://constitution.congress.gov/browse/essay/artIII-S2-C2
| -...
| mike_hearn wrote:
| But they apparently haven't done so, unless you know of a
| law that supercedes the APA the court is citing?
| bumby wrote:
| This feels like one of those topics that may sound ok in
| theory, but breaks down in practice. The implication is
| that the judges must be well-versed enough in any domain
| brought before them to interpret the laws effectively. This
| seems like a tall order for nine people. We have already
| seen this trouble in expecting strict interpretations
| regarding tech.
|
| To be fair, Congress has the same problem. I believe that
| was in large part the impetus for giving the agencies
| discretion. They have a better chance of having the depth
| of expertise to craft effective regulations.
| mike_hearn wrote:
| The Supreme Court doesn't resolve cases directly, they
| resolve questions of law for lower courts to take into
| account. They are meant to be experts in law, so there's
| no problem there. The lower courts can't be experts in
| everything, but bear in mind two things:
|
| 1. Courts have expert witnesses and a whole system around
| how they are called, challenged and questioned. Judges
| are trained to learn what they need to know from
| witnesses.
|
| 2. Good court systems do have expert judges they can draw
| on.
|
| I recently took part in the Craig Wright case in the UK
| as a witness. Wright forged enormous quantities of
| evidence and proving the forgeries often required deep
| technical knowledge about file metadata, how computers
| worked etc. Fortunately the judge was deeply technical
| himself, being often a judge on complex patent cases, and
| had no difficulty with any of the complexities.
| bumby wrote:
| It reads like it creates a deliberate impasse. The
| opinion states that ambiguities in law no longer
| implicitly give agencies discretion. That means Congress
| has to write unambiguous laws. But my original post
| acknowledges they cannot. Based on this ruling, it seems
| like anything other than a perfect, airtight law means
| it's effectively non-enforceable. So where does that
| leave us? It seems like the SC has laid the table for
| constant rules-lawyering by corporations to get whatever
| they want. In other words, they've let the perfect be the
| enemy of the good.
| mike_hearn wrote:
| _> That means Congress has to write unambiguous laws_
|
| I don't understand where this belief is coming from. The
| judgement explicitly states that writing unambiguous laws
| isn't possible. There will still be ambiguous laws, and
| those ambiguities will still be resolved. The only matter
| being decided on is who gets to resolve ambiguities - is
| it the agencies or is it the courts.
|
| Let's put this another way. Did Congress have to write
| unambiguous laws or have them be unenforceable before
| 1984? Clearly not. The Constitution itself is ambiguous
| on many points. Do other countries, which lack any
| equivalent of Chevron deference, have to write
| unambiguous laws or have them be unenforceable? Again,
| clearly not.
| bumby wrote:
| > _The only matter being decided on is who gets to
| resolve ambiguities - is it the agencies or is it the
| courts._
|
| I think we are agreeing here. I think the distinction is
| that I'm claiming the courts would need (yet don't have)
| the expertise to clear up ambiguities in such domains.
| Where do I get this claim? From the justices
| themselves.[1] There is evidence they are overly
| confident in their understanding when "doing their own
| research" on a domain outside their expertise.[2]
|
| So given that context, it's probably a bad idea to have
| justices decide on ambiguities. But if that power resides
| in them now, it means the only way to have effective laws
| is to avoid ambiguities in the first place. That's why I
| stated that is now on Congress. However, the court is
| also acknowledging that isn't possible. That's why I
| originally said it reads like they created a deliberate
| stalemate. From the court we have the following:
|
| 1) Congress cannot be expected to create unambiguous
| laws.
|
| 2) It is the court's job to resolve ambiguities.
|
| 3) The court lacks domain expertise.
|
| I'm claiming those set up a natural conflict because
| expertise is necessary to effectively resolve ambiguity.
|
| The most generous interpretation is that the justices
| don't need to know the details of the domain expertise,
| but rather just need to know how it interfaces with
| people and the law.[3] I'm pretty skeptical of that
| leading to good outcomes in complex, nuanced situations.
| I don't think we can pretend law is abstractly
| disconnected from the complex systems it regulates. As
| society progresses, most things get more complex so I
| expect the problem to get worse, not better.
|
| [1] https://www.businessinsider.com/supreme-court-google-
| tech-so...
|
| [2] https://www.propublica.org/article/supreme-court-
| errors-are-...
|
| [3] https://www.vox.com/2014/4/23/5644154/the-supreme-
| courts-tec...
| mcguire wrote:
| This is the Supreme Court that has repeatedly made
| subject-matter related arguments (particularly historical
| arguments) while ignoring the input of subject-matter
| experts.
| enragedcacti wrote:
| "If you accept the majority opinion at face value, then the
| majority opinion sure does make a lot of sense!"
| luxuryballs wrote:
| It will force Congress to act rather than allowing agencies
| to lurk in the shadows.
| singleshot_ wrote:
| We could solve all our problems via the ballot box in the
| legislature, and then these people would have more or less no
| cases to resolve.
|
| That has unfortunately proven unworkable.
| TylerE wrote:
| The only checks involved were in the mail, and almost
| certainly addressed to Clarence Thomas, who has taken more in
| bribes than the last 30 other justices _combined_ , and
| that's only the ones he's been caught on.
| psunavy03 wrote:
| And yet there are eight other Justices, and nothing he has
| to say matters unless he can get four others to agree with
| him.
|
| If Thomas is known for anything on the Court, it's shouting
| into the void in concurrence or dissent.
| TylerE wrote:
| Yeah, right. All the new conservative justices rammed
| through recently are cut from Thr exact same cloth.
| treflop wrote:
| From my understanding of political science classes, this is
| how the founders wrote it to be.
|
| Actually, it's supposed to be like this...
|
| Congress writes laws. Executive interprets those laws and
| decides ambiguities on its own. Some of those ambiguities are
| contested so courts decide the outcome. If that court's
| outcome is contested, then Congress makes a new ruling
| explicitly stating what they want. Then it repeats.
|
| It's a cycle of checks and balances that is supposed to loop
| back into itself.
|
| Checks and balances is not a one time thing.
| andyjohnson0 wrote:
| > It's a cycle of checks and balances that is supposed to
| loop back into itself.
|
| Except that the US doesn't have a functioning legislative
| branch, so the corrective feedback action never happens.
| The justices who are making these rulings, and their
| clients, are very well aware of this.
| consumer451 wrote:
| To pseudo-quote an influential American Conservative via
| the All-in podcast:
|
| ~"That's right, I want Congress dead-locked, I don't want
| any new laws passed!"
|
| - David O. Sacks
| 23B1 wrote:
| > Except that the US doesn't have a functioning
| legislative branch, so the corrective feedback action
| never happens.
|
| That's neither the judiciary's problem nor purview. Its
| yours (and mine) as voters.
| throwway120385 wrote:
| What sucks is that as a person in a populous area my vote
| counts less than someone who lives in a rural area.
| 23B1 wrote:
| It really doesn't, but I understand this is a very
| popular albeit destructive way of thinking.
|
| There is much more to you as a member of society than
| your single vote. You get to vote for many people in many
| different elections. You also can get civically engaged
| in many different ways.
| patmcc wrote:
| Then the voters should kick the bastards out. That's the
| biggest check on the legislative branch, it has pretty
| fast turnover.
|
| Now, if you have a population that doesn't want to elect
| lawmakers who will actually pass laws...well, that sucks,
| but it's kind of working as designed.
| malcolmgreaves wrote:
| Except you can't actually vote out the Republicans in
| Congress that are committing stochastic terrorism,
| because of gerrymandering.
| camel_Snake wrote:
| It doesn't take a whole population to grind the process
| to a halt - just a legislator or two, and _not_ passing
| legislation is just as important to some voters as
| passing legislation is to others.
| tpmoney wrote:
| It only takes a legislator or two because of the policies
| and procedures the other legislators agree to. They are
| free at any time to change their rules of procedure. A
| filibuster without requiring actual filibustering is a
| process congress agrees to have, not something prescribed
| for them from on high. Almost their entire process is
| something they have all agreed to, if congress is easily
| deadlocked by one or two legislators, it is because
| congress does not want that to change.
| vkou wrote:
| > Are there any checks against this?
|
| Yes, packing the court.
| efitz wrote:
| Alternative interpretation:
|
| The courts just remedied a situation where the executive
| branch of government had arrogated to itself powers reserved
| to the legislature by the Constitution.
|
| Notably another case ruled on this week did the same thing,
| by invalidating many agency-specific "administrative courts"
| and restored the rights of citizens to seek redress in actual
| courts.
|
| I and many others believe that executive branch agencies
| ("the federal bureaucracy") has become an out-of-control
| unaccountable 4th branch of government, and I for one am
| delighted to see them reined in.
|
| Note that agencies will still be able to perform enforcement;
| they just have to stay within the bounds set by laws and they
| will no longer be the sole arbiters of those bounds.
| intended wrote:
| Hey, that was the goal and plan of the various organizations
| that got these judges in place.
|
| I mean, what checks and balances apply to focused, dedicated,
| funded campaigns and teams, supported by backers willing to
| spend multiple decades and the millions necessary - to over
| turn laws, win minor elections, get judges into lower courts?
| People spent the time to understand the system so that it
| could be changed in a way they think is superior.
|
| The SC situation is the fruit of such labor.
|
| The shortest path solution to something like this is still
| decades long.
| dec0dedab0de wrote:
| It sounds to me like they just gave the legislative branch
| some of it's responsibility back. Delegating their job to the
| executive branch of government has created agencies that make
| and enforce rules themselves, and ultimately operate at the
| whim of whoever the president happens to be at the time.
|
| If congress wants to delegate details to experts they could
| explicitly state that in the law, and create their own
| organization of experts to do the job. Giving the president
| more power is not a requirement, and enforcement should
| remain separate. But even then, regulations shouldn't be
| ambiguous. The laws should state something like "food purity
| should be within %x of yada yada, where x is updated yearly
| by the appropriate agency" Then it's up to the courts to
| decide if the law was broken or not.
|
| In the short term this could be a nightmare as companies
| flaunt all sorts of regulation, but I think overall it is a
| good thing.
| curiousllama wrote:
| > The laws should state something like "food purity should
| be within %x of yada yada, where x is updated yearly by the
| appropriate agency" Then it's up to the courts to decide if
| the law was broken or not.
|
| This is kind of true, but also belies the depth of the
| Chevron change. In this example, plaintiffs can now, for
| example, challenge how the "X%" calculation is done. What's
| an appropriate methodology?
|
| In the past, courts deferred to the agency: as long as it's
| scientifically valid + consistent, it's up to the
| regulator, not a judge. Now, it's up to a judge.
|
| So if I sue and say "you should use a 0.01 alpha for
| calculations, not 0.05" for your X% calculation, then a
| judge makes the methodological decision, not the
| statistician.
|
| IMO, it's not really reasonable for congress to design
| statistical methodologies as part of the text of a bill.
| dec0dedab0de wrote:
| but if congress explicitly states that agency xyz will
| update specific numbers wouldn't that be pretty solid? As
| far as I can tell, this is just about leaving it up to
| the courts when things are ambiguous, which is kind of
| the point of courts.
| harmmonica wrote:
| Others have said this using different words, but I'm going to
| chime in anyway. I don't think the courts will have more
| power. SCOTUS is saying that congress needs to actually make
| clearer (better?) use of its power by being more explicit
| when legislating (i.e. when writing laws) instead of relying
| on the executive branch agencies (for those unfamiliar with
| the US political structure, agencies like the FDA, EPA, etc.
| are executive branch agencies that, ultimately, report to
| whomever is the current US president) to interpret and in
| many cases read into the laws that congress has passed.
|
| The more practical reality of this ruling is, I think, this:
| there is no world where this is a win for anyone who believes
| in a bigger US federal government. This is a huge win for
| those people who believe the power of the federal government
| should be limited. It's likely the biggest challenge to the
| size of the federal government in my lifetime and I've been
| alive for a good bit. The dysfunctional congress that the US
| currently has makes it a certainty that in the short term
| countless regulations will be unenforceable and therefore
| this will be a picnic for anyone who is anti-regulation (note
| Trump in the debate last night where he talked about
| scrapping regulation. In comparison to this decision, Trump's
| regulation-slashing will look like he shot a rifle in
| comparison to the shotgun SCOTUS just fired).
|
| Last comment: this SCOTUS has made it clear that the federal
| government will be massively restrained. There are two
| avenues by which they've made this clear: first, they have
| ruled very aggressively in favor of state's rights
| (especially when it comes to social issues like abortion),
| and, second, with this Chevron ruling, federal agencies will
| not be able to make decisions unless there is explicit intent
| in the laws that congress passes.
|
| I'm having an extremely difficult time wrapping my head
| around just how epic of a change this SCOTUS has brought to
| the way the US population is governed, at both the state and
| federal level. Hard to really comprehend the gravity of the
| coming change, which will take decades and decades to fully
| understand.
| jmyeet wrote:
| > This seems like the judicial branch just voted to give
| itself substantially more power.
|
| 100% this but it's not new. This court claim to be
| "originalists" or "textualists" (even though "originalism"
| was invented in the 1980s) but has made a massive power grab
| that we will feel for decades. The "originalists" invented
| two new doctrines to justify this:
|
| 1. History and tradition. Basically the court decides if how
| something was in 1780 as a legal basis for interpreting the
| constitution and law. Remember at this time some peoplw were
| property, women couldn't vote and there was no interracial
| marriage. This is the "history and tradition" the court seeks
| to return to; and
|
| 2. The major questions doctrine ("MQD"). This has gives
| sweeping powers to the court to say that even when Congress
| defined clear language if the consequences are "large" (as
| the court determines it) then the court can step in and say
| that Congress wasn't clear enough so the court gets to
| essentially write legislation and overrule both the
| legislative and executive branches. MQD was used to justify
| blocking student loan relief despite Congress giving the
| president and the education secretary expllicit powers in
| this regard.
| mcguire wrote:
| This is the Supreme Court that claims, " _In the summer of
| 2023, Justice Samuel Alito told the Wall Street Journal that
| Congress has no authority to regulate the Supreme Court,
| despite the ethical regulations Congress already imposes on
| the justices_ " (https://www.brennancenter.org/our-
| work/analysis-opinion/alit...) and that does not have any
| binding code of conduct.
| Lord-Jobo wrote:
| Voting for a reasonable human for president is probably the
| important check to keep in mind for the next few months
| xbar wrote:
| I would prefer if this conservative court would review the
| constitution and conclude that it must revoke its own right of
| judicial review.
| mmanfrin wrote:
| Turns out the notions of jurisprudence they claim to
| represent is all a farce for pushing specific political
| agendas after all.
| davidw wrote:
| It's all "calvinball".
| paulmd wrote:
| I was thinking yesterday what a mockery of the concept of
| justiceability some of their past decisions have made. Like
| the court is forced into a Sophie's choice on whether to
| agree to let a Captain Planet villain go free or let the
| lawyers drain the fund. And the court could also just
| flatly do a "in a one-time non-precedent-setting ruling,
| those assets are obviously still under your control and
| companies cannot indemnify individuals against actual
| knowing wrongdoing"... but that would never be used in that
| way for the benefit of mere plebs.
|
| But it does throw the whole idea of injusticeable claims
| right out the window. Bush had no claim at all, he
| literally still got thrown the election in a special one-
| time-ruling.
|
| What they did was a valid exercise of their power, just an
| extremely distasteful one. Right? As such, they're
| literally, by the text of the constitution, an
| unjusticeable claim. The concept is facially incoherent,
| the court can justice anything it wants.
|
| The things they choose not to address, literally are
| because they're things they don't care about using their
| assumed powers to address. They literally invented the
| whole concept of a "one-off calvinball ruling" and
| formalized the concept already.
|
| Just your friendly "textualist" wing at work.
| kemayo wrote:
| It would be the funniest "textualist" outcome, certainly.
|
| Every time I hear some disparaging comment about "the
| penumbra of the constitution" from the conservative justices,
| I can't help but roll my eyes because of that.
| remarkEon wrote:
| > This Court has long understood Chevron deference to reflect
| what Congress would want, and so to be rooted in a presumption
| of legislative intent. Congress knows that it does not--in fact
| cannot--write perfectly complete regulatory statutes...
|
| I really hope she meant to convey a different point here,
| because it reads as if congress doesn't care and wants
| unelected bureaucrats figuring out what laws mean because they
| themselves know they suck at writing those laws. If that is the
| case, then why even have congress?
| consumer451 wrote:
| While members of federal agencies are not elected, their
| heads are appointed by elected officials.
|
| I never understood the whole "un-elected officials" argument.
| How many people should we have on the ballot? 10s of
| thousands?
| tzs wrote:
| You've misunderstood what she's saying. For many issues it is
| not possible for Congress to write laws that are
| simultaneously completely unambiguous and actually deal with
| whatever issue they are trying to deal with. Actually
| applying the law almost always involves numerous decisions to
| fill in some of the gaps.
| aport wrote:
| I would much rather unelected bureaucrat scientists decide
| how to implement the intent and application of laws than
| congress.
| bluGill wrote:
| You hake no reason to assume that. The people who will try
| to write those regulations are those with have an angle. We
| call it regulatory capture.
| aport wrote:
| I don't see how the threat of regulatory capture would
| argue against letting experts decide what actions need to
| be taken to protect the publics health and the
| environment
| goodluckchuck wrote:
| I would argue against government bureaucrats being
| experts.
| ceejayoz wrote:
| Congress is similarly captured.
| p_l wrote:
| Which is way easier when you only have to convince random
| court with a gish-galloping person as "expert witness".
|
| Regulatory capture at agency level is way harder to do.
| biomcgary wrote:
| Regulations that automatically expire after some time
| period but require Congress to given an up/down vote would
| give the regulations greater legitimacy in a democratic
| system.
|
| Congress doesn't need the expertise to write the
| regulations. The elected Congress could just vote to pass
| the regulations as laws. Congress just doesn't want to be
| on the hook for the regulations, which is part of the
| reason why they hand off law-making to the agencies in the
| first place.
|
| Theoretically, this approach would give people a greater
| voice in the rules that govern them. Sadly, in practice, we
| can't seen to rollback the proliferation of criminal laws
| that embolden prosecutors and lead to an unfathomable
| number of people in jail that have not been convicted by
| juries.
| Cody-99 wrote:
| Congress already has that power now though..? The
| congressional review act lets congress review and vote on
| new regulations issued by government agencies. Lots of
| people in this thread seem to be missing the fact that
| congress already approves of these agency rules. If they
| didn't they would have blocked them under the CRA.
| jkaplowitz wrote:
| Congress failing to block a rule by passing a CRA
| resolution is very different from Congress approving of
| the rule. For example, if the majority in the House
| supports a rule but the majority in the Senate does not
| (or vice versa), neither an explicit approval action nor
| an CRA blocking resolution can be passed.
| Terr_ wrote:
| "Perfectly complete" is a pretty high bar. For example,
| consider a law directing the EPA to fine violators who dump
| "fatal substances". How complete is complete enough?
|
| That leaves us with some options, such as these ones which
| I'm ordering from "most reasonable" to "most insane":
|
| (1) In lawsuits, courts should _generally assume_ that the
| lawmakers have given the EPA permission to create a formal
| list and judgement criteria for what counts.
|
| (2) In lawsuits, courts should assume the list is totally
| empty unless a federal lawsuit has happened where both sides
| have called in "chemical experts" to testify and then a
| federal judge decides which chemicals are deadly and which
| are not.
|
| (3) The law is _totally meaningless_ until congress amends it
| with another bill that inserts a full list of every possible
| chemical composition and configuration required
| concentration-level, and anything not explicitly included on
| the list is exempt.
| AuryGlenz wrote:
| The most reasonable option would be for congress to
| explicitly put in the bill that the EPA (or some other
| group of experts) makes the list. I'm no legal expert but
| in your example it sounds like that's all that's needed.
| thyrsus wrote:
| It's in the law already; for instance, for the Clean Air
| Act, see USC 42 section 7422 where the EPA is authorized
| to reclassify previously unregulated substances. That the
| court chose to ignore the plain reading and intent of
| Congress is baffling, unless one explains it as gross
| corruption.
| AuryGlenz wrote:
| Did you list the wrong thing, because this seems pretty
| limited?
|
| (a) Radioactive pollutants, cadmium, arsenic, and
| polycyclic organic matter Not later than one year after
| August 7, 1977 (two years for radioactive pollutants) and
| after notice and opportunity for public hearing, the
| Administrator shall review all available relevant
| information and determine whether or not emissions of
| radioactive pollutants (including source material,
| special nuclear material, and byproduct material),
| cadmium, arsenic and polycyclic organic matter into the
| ambient air will cause, or contribute to, air pollution
| which may reasonably be anticipated to endanger public
| health. If the Administrator makes an affirmative
| determination with respect to any such substance, he
| shall simultaneously with such determination include such
| substance in the list published under section 7408(a)(1)
| or 7412(b)(1)(A) 1 of this title (in the case of a
| substance which, in the judgment of the Administrator,
| causes, or contributes to, air pollution which may
| reasonably be anticipated to result in an increase in
| mortality or an increase in serious irreversible, or
| incapacitating reversible, illness), or shall include
| each category of stationary sources emitting such
| substance in significant amounts in the list published
| under section 7411(b)(1)(A) of this title, or take any
| combination of such actions.
|
| (b) Revision authority Nothing in subsection (a) shall be
| construed to affect the authority of the Administrator to
| revise any list referred to in subsection (a) with
| respect to any substance (whether or not enumerated in
| subsection (a)).
| sebzim4500 wrote:
| I think there is an option (4) which is probably the one
| the court would prefer.
|
| (4) In lawsuits, the regulator should have to prove that
| the substance in question is fatal. The EPA will have
| published a list ahead of time and and if challenged it
| will be up to a court whether the EPA has correctly
| determined the lethality of the substance.
| jeffbee wrote:
| You missed the point of the paragraph. Congress routinely
| writes laws directing, for example, the EPA to determine if
| and when an emissions-reducing technology is economically
| feasible. The majority opinion is saying that courts need not
| defer to such findings and they will decide for themselves.
| Avshalom wrote:
| https://harvardlawreview.org/forum/vol-136/the-imperial-supr...
| alfalfasprout wrote:
| On the flip side-- congress often will pass regulation with the
| very intent to allow ambiguity so that the regulatory agency
| will have extreme latitude often against the will of the
| people.
|
| Or a regulatory agency will grossly stretch their mandate to
| overstep what they are effectively allowed to regulate and
| interpret.
|
| Since there effectively minimal judicial checks and balances
| against that behavior that's also not desirable either. Just
| look at the farcical interpretations from the ATF in recent
| years that have sent innocent folks to prison for having a
| completely non-functional design of a gun part on a business
| card to prison. Or classifying a shoe string as a machine gun.
| These folks have had little to no recourse in court due to the
| ATF's broad unchecked discretion.
| vundercind wrote:
| To anyone wondering, to save you some googling: yes, both the
| mentioned instances aren't obviously-unreasonable in context.
| One was someone formally asking the ATF whether it'd be
| illegal if they made a machine gun with a shoe string, and
| would that shoe string then be an illegal machine gun part
| and the ATF going "yeah, duh" and the other was someone
| seeing exactly how close they could get to selling machine
| gun conversion parts without crossing the line, and the
| karmic principle of FAFO kicked in.
| lolinder wrote:
| To put it a bit differently: Congress has not been able to pass
| substantial laws in decades. The executive branch has filled in
| by interpreting these laws very loosely in order to adapt to
| the changing situation and--importantly--to adapt to changing
| presidencies.
|
| That last part is the single biggest problem with the
| administrative regime as it has stood hitherto: it means that
| _almost everything_ that happens in the federal government can
| be completely undone based on the results of a single
| nationwide election that we have _every four years_. It means
| that every right, every process, every plan that interacts with
| the federal government in any way has a four-year shelf life.
|
| Government by administrative rule is why no one is getting too
| excited about non-competes getting banned or non-solicitation
| agreements curtailed. It's why I'm nervous about the future of
| the IRS's free tax filing software. It's why there are whole
| industries built up around trying to keep up with the latest
| about-face that the executive branch has made.
|
| The existing system of administrative rules _absolutely sucks_
| for stability. It sucks for anyone who gets used to a benefit
| only to have it stripped out with an administrative change. It
| sucks for anyone who 's trying to plan anything out on a longer
| timetable than four years.
|
| If this forces Congress to get their shit together and pass
| lasting laws that can't just be upended with the next
| presidential election or if it forces states to start taking on
| the role that the federal government has hitherto failed to
| fill then in the long run this ruling will be better for
| everyone. It's just going to be very uncomfortable for the next
| few decades as we sort it all out.
| immibis wrote:
| It won't force Congress to do shit. The same flip flop will
| still happen, but instead of 4-year executive terms, it will
| be driven by lifetime court appointments. The court is going
| to remain Republican for the foreseeable future, unlike the
| presidency.
| sattoshi wrote:
| Whats the problem? If congress disagrees with what the
| courts did to fill in the blanks in their laws, they just
| need to pass new laws.
| refulgentis wrote:
| I used to feel this way, and I can't quite identify the
| totality of what shifted my position, but now I parse
| this as "we just need to motivate congress" and it feels
| wrong.
|
| The American system has always been full-throated
| adversarial -- and extremely successful. The historical
| system of legislature could delegate, and if the
| delegation went bad, the judiciary could intervene,
| rather than the legislature has to intervene in every bit
| of administrative minutae.
|
| Analogy would roughly be...idk, the CEO has HR handle
| pencil procurement. HR, over the years, used this to
| interpret they could swap in mechanical pencils, erasable
| pens. But the new CFO tells the board this has to stop,
| the CEO is responsible for signing off on expenses. And
| then the employees say this is a good thing, that'll get
| the CEO more involved. But the CEO is already involved,
| just busy with other things.
| sattoshi wrote:
| The problem aren't interpretative courts, its unclear
| laws.
|
| The pencil example is all fun and games, but swap <<
| buying mechanical pencils >> with << sending people to
| prison >>, and then it makes more sense why some people
| prefer the judiciary branch to constrain the power of HR
| when there's ambiguity.
| throwway120385 wrote:
| It's pretty much impossible to write a statute to account
| for every single possible situation and interpretation.
| In one county where I live we recently had a huge
| kerfluffle over the county code section about a ferry and
| ferry fares and what kinds of things the farebox can be
| spent on. At one point there were three different
| rewrites of the same statute, all purported to accomplish
| the same goal, and all markedly different depending on
| which motivated entity wrote the proposal. At any rate
| someone still would have needed to interpret the statute.
| sattoshi wrote:
| The reasonable course of action is to pick one of the
| three rewrites that _codify_ a proposed interpretation of
| the currently ambiguous rules.
|
| What would be unreasonable is to give those 3 options to
| a judge and ask them to do a coin toss on which one is
| right, and then let it sit that way.
|
| I may be radical in this, but I wish the judiciary could
| force the legislative branch to decide on what the law
| they wrote means.
| eitally wrote:
| Indeed. What's happened fairly recently is that the
| Heritage Foundation and the Federalist Society have
| realized this and concluded that they can define the
| future of the country by strengthening the judiciary
| rather than trying [the much harder task] of making
| congress functional. It's working great, and even though
| this started further back it only became blatantly
| obvious to outsiders what was happening with the Trump
| presidency.
| refulgentis wrote:
| The CEO example is intended to demonstrate why "ah good,
| this'll make the legislature more active" may be too
| simple.
|
| I'd also prefer a more practical example to argue with.
|
| IMHO my shift on this is due to the practical examples
| seen over the years, legislature delegating to an agency
| they create, with judicial review, ends up being a _good_
| thing.
|
| I'm honestly unaware of any unjust rule-making that ended
| up unfairly trampling someone, much less whip-lash back
| and forth.
| throwway120385 wrote:
| And more importantly getting the CEO involved in pencil
| procurement prevents the CEO from handling business
| development tasks that would bring in tons of mechanical
| pencil money. So it's penny wise but pound foolish.
| megaman821 wrote:
| What about this ruling stops Congress from explicitly
| granting interpretive power on some aspects of a law? The
| default now is implicit interpretive power, this ruling
| flips it.
| refurb wrote:
| Indeed.
|
| It seems like people don't understand how the system
| works.
|
| Congress cries about Roe vs. Wade, but the power is
| _entirely_ in their hands to pass federal law to secure
| abortion rights.
|
| It's like the police crying that someone should do
| something about crime.
| xocnad wrote:
| Gerrymandering has removed much of the incentive on
| congresspersons to act affirmatively to pass legislation.
| Powdering7082 wrote:
| Why even have an executive branch? Surely everything can
| just be done through our efficient judicial system and
| wise legislative system
| xeromal wrote:
| I have only grade school understanding of the branches
| but I was taught the executive branch is supposed to
| enforce what congress decides with laws which this
| reversal seems to support.
| surfaceofthesun wrote:
| Hopefully, this is a useful analogy.
|
| Congress is like the product manager and creates
| something like the URS (user requirements specification).
|
| The executive branches like the developer team that has
| to Turn those high-level requirements into detailed
| implementation plans.
|
| The judiciary is typically the quality assurance and
| auditing team. They make sure that the executive branch
| hasn't gone way past the initial requirements and they
| also check to make sure the initial requirements make
| sense and don't cause other problems.
| kogus wrote:
| I think you are being sarcastic, but actually a radically
| reduced executive branch would be a huge step in the
| right direction for the actual rights of citizens to
| determine their own laws.
| malcolmgreaves wrote:
| > rights of citizens to determine their own laws.
|
| You meant to say "extremely wealthy citizens." The power
| vacuum that comes with less government is always filled-
| in by people with the most resources. And those sorts of
| people only see the non-wealthy as objects to be
| exploited for them to acquire even more wealth.
| kogus wrote:
| I refuse to be that cynical. All people can vote. Chevron
| was enacted in 1984. So the most progressive periods in
| US History occurred _before_ it was enacted, when
| (according to you) a power vacuum was filled in by the
| people with the most resources.
|
| Why didn't those super powerful vacuum-fillers carry the
| day in the Civil Rights Movement, or when marginal income
| tax rates were 90+%, or when the EPA was created? Because
| they don't have the power that everyone thinks they do
| (maybe even they think they have, themselves).
| immibis wrote:
| So Congress would need to vote on every new drug approval
| kogus wrote:
| No, I do not think that. I'll copy/paste this from
| another reply I made to a very similar comment:
|
| I do not expect Congress to atomically approve or
| disapprove every regulatory action. That is a straw man.
| I expect them to write clear laws that state what
| agencies can do, what they cannot do, and how they should
| do it.
|
| The case before the court is a good example of how the
| opaque and unaccountable nature of a federal agency
| allows them to serve their own self-interest at the
| expense of the citizens they are supposed to protect.
| Specifically, Congress specified in law that "authorizes
| the government to require trained, professional observers
| on regulated fishing vessels". But their law did not
| specify who would pay for these observers. So under
| Chevron, the agency got to decide. And, shocker! They
| decided they did not have to pay for it.
|
| This ruling stops that specific abuse, and hopefully many
| others. The actions of federal agencies is not generally
| a thing to be desired.
| allturtles wrote:
| > Specifically, Congress specified in law that
| "authorizes the government to require trained,
| professional observers on regulated fishing vessels". But
| their law did not specify who would pay for these
| observers. So under Chevron, the agency got to decide.
| And, shocker! They decided they did not have to pay for
| it.
|
| Isn't that just the default assumption of all regulatory
| law? e.g. when the FDA adds an ingredient labeling
| requirement, there's no expectation that the FDA has to
| pay for the costs of adding the labels. When the EPA says
| "hey you can't dump your waste in this river" they don't
| have to pay the cost of getting rid of it in a compliant
| way. This doesn't strike me as an abuse at all.
| cycomanic wrote:
| > No, I do not think that. I'll copy/paste this from
| another reply I made to a very similar comment:
|
| > I do not expect Congress to atomically approve or
| disapprove every regulatory action. That is a straw man.
| I expect them to write clear laws that state what
| agencies can do, what they cannot do, and how they should
| do it.
|
| But it isn't, the world changes, writing laws that
| anticipate these changes is equivalent to predicting the
| future. Take for example laws to regulate the telephone
| networks, those networks over time changed from carrying
| voice traffic to including data to carrying data
| exclusively (and voice just being data). So even if we
| believe the networks are effectively the same, Congress
| now has to waste their time to write new laws to keep up
| with those technological advances (and telecom is by far
| from the only area, what about new medical therapies that
| we hadn't imagined previously. Should Congress write new
| laws for these? ) essentially this is the way to paralyze
| it.
|
| > The case before the court is a good example of how the
| opaque and unaccountable nature of a federal agency
| allows them to serve their own self-interest at the
| expense of the citizens they are supposed to protect.
| Specifically, Congress specified in law that "authorizes
| the government to require trained, professional observers
| on regulated fishing vessels". But their law did not
| specify who would pay for these observers. So under
| Chevron, the agency got to decide. And, shocker! They
| decided they did not have to pay for it.
|
| I don't see what is shocking about it. Are you shocked
| that you have to pay for your rubbish collection (which
| is a requirement for living in many places)?
|
| > This ruling stops that specific abuse, and hopefully
| many others. The actions of federal agencies is not
| generally a thing to be desired.
| enragedcacti wrote:
| Yesterday would you have said "Whats the problem? If
| congress disagrees with what the executive did to fill in
| the blanks in their laws, they just need to pass new
| laws."?
| lolinder wrote:
| > It won't force Congress to do shit.
|
| In which case the states will step in. We're already seeing
| this happen post- _Dobbs_ , with blue states falling over
| themselves to create safe havens. If Congress can't get
| anything done and the courts won't let the executive branch
| do anything then that trend will continue with workers'
| rights and everything else.
|
| Maybe our problem is that the country has just gotten too
| big to run effectively as a single 350-million person
| democracy, and it's time for the state governments to step
| up and stand up for their people.
|
| Either way--federally or at the state level--we need
| written laws drafted by elected representatives in a body
| that has more inertia than the single position of chief
| executive.
| rayiner wrote:
| That would be great!
| dangoor wrote:
| > Maybe our problem is that the country has just gotten
| too big to run effectively as a single 350-million person
| democracy, and it's time for the state governments to
| step up and stand up for their people.
|
| Or, perhaps, we just need to alter some aspects of that
| government to run better. For example: changing the size
| of the House of Representatives to make it more
| representative. It wasn't supposed to be stuck at 435.
|
| Switching away from first past the post voting would also
| help enable more diverse voices within the government.
| lolinder wrote:
| > Switching away from first past the post voting would
| also help enable more diverse voices within the
| government.
|
| You have my full agreement on that! Unfortunately that's
| not going to happen at the national level any time soon,
| both parties benefit from first-past-the-post too much.
| We'll see better luck experimenting with it at the local
| and state level.
| datavirtue wrote:
| I Louisiana today, Bibles were mandated in every
| classroom and all teachers are mandated to "teach from
| the Bible."
|
| I imagine there are some seriously distraught teachers in
| that state right now.
|
| We are in dark times.
| itsdavesanders wrote:
| And imagine how our allies feel. If you can't count on the
| U.S. for more than about 3 years at a time, then you quickly
| move away from them and insure you aren't so tied to them
| that a foreign election suddenly makes you vulnerable. Which
| then makes everyone weaker as a whole and easier to pick off.
|
| Which is why U.S. foreign adversaries have been actively
| sowing chaos for a decade.
| refulgentis wrote:
| FWIW nothing changed re: presidential power over foreign
| relations. The judiciary held that the legislature can't
| empower an agency.
| dangoor wrote:
| I don't think our allies felt quite so flung about until
| Trump came along. Sure, administrations might engage a
| little differently from one another, but fundamentally they
| could count on the US for a very long time. Presidents did
| not, before Trump, throw NATO under the bus, for example.
| spurgu wrote:
| Reminding NATO countries to adhere to the 2% of GDP
| spending stipulated in the terms of the alliance is
| "throwing NATO under the bus"? Or did he do something
| else I'm unaware of?
| llamaimperative wrote:
| Did you forget the first impeachment for withholding
| critical aid from a buffer country between NATO and USSR-
| hopeful in exchange for them investigating his political
| rival?
| briandear wrote:
| Ukraine has nothing to do with NATO. If Poland were
| attacked, then there'd be something to discuss. As an
| American taxpayer, Ukraine is none of my business. Was
| Ukraine sending troops to help find Bin Laden when the
| U.S. was attacked? What strategic value does Ukraine have
| for the U.S.? Very little. It wasn't like they were
| letting us put airbases or missile defense systems in
| their country. If Russia attacked Finland, Ukraine
| wouldn't have done anything.
| llamaimperative wrote:
| Its strategic value is exactly as described: a buffer
| state. It gives us months, if not years, of warning and
| can potentially totally rebuff an aggressive Russian
| state.
|
| To be confused about this at _this_ point reveals either
| profound ignorance or extreme motivated reasoning.
| briandear wrote:
| Trump was found not guilty in the impeachment trial.
| Effectively he was "indicted," but not convicted. So
| according to the Constitution, he did not do what he was
| accused of.
| llamaimperative wrote:
| lol, that is absolutely not what "not guilty" means.
|
| That's why it's "not guilty" or "acquitted" as opposed to
| "innocent"
| ericmay wrote:
| There are things you are not seemingly aware of, to your
| point.
|
| But while I do agree NATO allies _should_ spend 2% or
| more on the militaries in a good faith effort, the
| spending value itself is kind of a dumb metric if for
| nothing other than they could just spend money and have
| poorly trained militaries anyway. It's a rallying point
| to be angry about by people who didn't know what NATO
| even was before Trump started complaining about it.
|
| Going back to the awareness issue, the United States and
| allies across the world have been working to stop Russian
| aggression in Ukraine, and potentially elsewhere like the
| Baltic states or other formerly occupied Soviet Union
| states. Many of those in leadership in Europe and
| elsewhere are concerned about Trump because they do not,
| for good reason, trust him to act faithfully on the
| commitments that the United States has made in Europe.
|
| Vladimir Putin believes that the United States and its
| influence should be degraded in Europe and that European
| states should instead be under the influence of Russia.
| This is a net negative for the United States obviously,
| and the concern here is that Donald Trump seems to either
| agree or find himself apathetic toward this because he
| doesn't seem to understand that he's being played for a
| fool to the detriment of the United States and European
| partners.
|
| To try and paint a more clear picture, if the United
| States were to fail to honor its security commitments to
| Europe, it calls into question the ability of the United
| States to honor _any_ strategic commitment. This pulls
| not just European countries closer to Russian influence,
| but causes the United States a massive headache in the
| Pacific as South Korea, Japan, and Taiwan (never mind the
| Philippines or others in South East Asia) stand to be
| sucked into the sphere of Chinese influence which means
| that the United States loses military, diplomatic, and
| economic capabilities and leverage.
|
| You might say "so what?" and to that I'd say you'll find
| our country worse off economically, higher prices for
| many goods, and whatever meager international influence
| exists today to cooperate on global or regional issues
| will be significantly degraded.
| barrkel wrote:
| Allies were so put out by Bush II that they gave Obama
| the Nobel peace prize before he did anything.
| datavirtue wrote:
| That was a jaw dropper.
| Pet_Ant wrote:
| Bush going unilaterrally to war with Iraq (albeit with
| his lapdog Blair) really didn't do US foreign relations
| any favors either. It's not just Trump, it's a long-
| running theme. Trump just accelerated the trend.
| dimitrios1 wrote:
| I am not buying this argument.
|
| America for better or worse (mostly worse) has a two party
| system that in practice functions as mostly a uniparty
| prioritizing defense spending, entitlements, and the
| economy, with some lip service paid to red meat/blue meat
| issues to ensure power is maintained. This means you can
| reliably predict what American policy will be in any given
| moment for any given president.
|
| Besides, EU member states have had much more iteration on
| their governments, policies, regulations, and parties. It's
| not uncommon for a European country to have 7 different
| parties. And unlike the US, EU's don't hold their
| constitutions in a such unchanging high regard. Ours is
| purposefully difficult to change. France, for example, on
| the other hand, has changed its constitution twenty-five
| times since circa 1958.
|
| edit: I took out He-Who-Must-Not-Be-Named because it seems
| even here on the board of Very Smart People (tm) we can't
| help ourselves when we see that name and ignore the rest of
| the point someone tries to make.
| lolinder wrote:
| > Arguably, the biggest wrinkle to this was Trump
|
| You say this as though he _isn 't_ favored to win the
| next election and take over the presidency and all its
| policies in about six months.
|
| Edit in response to the edit: I latched onto this because
| it's entirely relevant to the rest of your point. Trump
| _is_ the Republican party today, and his foreign policy
| dictates the acceptable stances for the majority of
| Republicans in Congress. His foreign policy is absolutely
| terrifying to our allies.
|
| I didn't latch on to Trump because he's a big name, I
| latched on to Trump because you deliberately glossed over
| him as though he weren't an enormous glaring example of
| how quickly our foreign policy can (and is likely to!)
| pivot.
| pessimizer wrote:
| I never understand this mentality. They continue to
| support expanding the power of the executive until it
| consumes all functions of government, while
| simultaneously declaring that Trump (and every Republican
| candidate in every presidential election) is basically
| Hitler. As if it is inconceivable that the technocrats
| they relate to will never lose control of government (and
| legislative agencies.) This, when a wrestling valet
| Berlusconi-level carnival barker was just elected
| president eight years ago against the ( _appointed_
| through a goofy primary) ubertechnocrat H. Clinton. That
| was their best and brightest, and the public was
| disgusted.
|
| My theory is that liberals were made mentally dull by the
| Warren court, that it created this unacknowledged model
| of government within their minds where all actual
| controversies are low level, and will eventually work
| their way up to the Supreme Court, who will simply
| dictate the consensus liberal opinion to be the law.
|
| It's a world where Congress has no other function but to
| create regulatory agencies to which they appoint their
| campaign staff, thinktank creatures, friendly professors,
| lobbyists, and each other's friends and family. To fill
| in the gaps, the country is otherwise ruled through
| executive orders, and all resulting injustices from this
| system are to be straightened out by the Supreme Court.
| _That world is very much gone,_ and nobody has adjusted
| because all of their theories on liberal governance come
| from a period during which this was close enough to true
| (although gradually less and less after Warren.) It is
| not now true. We (and liberals) can stop worshiping the
| members of the Supreme Court now, and simply treat them
| as smart, connected people writing opinions that we may
| or may not agree with, instead of some holy chamber of
| wizened elders.
|
| It's profoundly anti-democratic. It's an exact
| counterpart to the theocrats on the conservative side,
| but not grounded in anything but current upper middle-
| class trends and a belief in Whig history to replace the
| belief in gods.
|
| If we can't fix Congress, and get them to actually
| govern, there's no government worth saving. I'm not going
| to fight for the right of the president to unilaterally
| declare war, rule by executive order and Supreme Court
| dictates, or the actual functioning of the country to be
| delegated to unaccountable regulatory agencies. Doesn't
| spark joy.
|
| edit: I think the existence of the Senate probably adds
| to the level of liberal cynicism about democracy. It
| should really be abolished or directly elected in a way
| unconnected with the states. We already have a
| geographically based body in the House. The Senate is
| clearly a distortion of democracy, like a sensory
| homunculus for representative government (https://en.wiki
| pedia.org/wiki/Cortical_homunculus#Representa...)
| rayiner wrote:
| This is a home-run comment, particularly this:
|
| > It's a world where Congress has no other function but
| to create regulatory agencies to which they appoint their
| campaign staff, thinktank creatures, friendly professors,
| lobbyists, and each other's friends and family.
|
| And they call anything that takes power away from this
| unelected shadow government "anti-democratic."
| User23 wrote:
| 2016 was absolutely fascinating because, while it's
| possible it was a double fakeout, it really looked like
| the first shoot in presidential politics in my lifetime.
| Insofar as there is a script, it sure does look like The
| Nameless One went off it. It was totally obvious the
| intent was for a Bush vs Clinton rematch.
| mmcgaha wrote:
| So you think Trump was supposed to be a spoiler liker
| Perot?
| jf22 wrote:
| Foreign policy is mostly up to the executive branch and is
| far removed from the decision-making process regarding
| whether or not the EPA can regulate a new type of deadly
| plastic.
| refulgentis wrote:
| I used to hold this. I can't put a finger on what exactly
| changed. I strongly believe Congress is productive enough,
| and the ambiguity around this sort of thing is good, because
| it allows flexibility in the face of changing circumstances.
|
| With such a vibrant public democracy as America, things that
| drag out, like allowing non-competes for fast food workers,
| are best served with public participation, a long process,
| and sunlight.
|
| It's not as tightly coupled to a presidential administration
| as you may think, that's where "Deep State" grumbling comes
| in: if it's imposed by presidential fiat, its in violation of
| a 1000 mundane things that courts have historically
| consistently enforced: a long, public, process with a
| thorough cost/benefit analysis that indicates a net benefit.
| So, the "Deep State" (administrative processes that are
| required to occur for a rule change at an administrative
| agency, to whom authority was delegated to by the
| legislature) prevents a unilateral presidency.
|
| Parsing through the FTC press release on non-competes
| provides _some_ indica of the sunlight /processes involved.
| [1]
|
| [1] https://www.ftc.gov/news-events/news/press-
| releases/2024/04/...
| sshconnection wrote:
| If you think the administrative flip flop is bad now, wait
| until Trump implements schedule F.
| skhunted wrote:
| There has always been judicial review in cases where some
| affected party felt that administrators of an agency went
| beyond the mandate. This has been the norm for many decades
| now. The Supreme court legalized foreign money to use in
| election campaigns with Citizens United. It has gutted voting
| rights by allowing thousands of polling stations to be
| closed. You can easily guess where those polling closures
| mostly have occurred. A few days ago it effectively legalized
| bribing government officials. It has taken away rights of
| women, convicts, and now the ability of government agencies
| to carry out their mandates.
|
| There are major power imbalances in the country and it is not
| sustainable. The path we are on leads to a breakup of the
| country or a rewriting of the Constitution. The status quo is
| not sustainable.
| pstuart wrote:
| > Congress has not been able to pass substantial laws in
| decades
|
| For those in the sway of the Federalist Society, that's a
| feature, not a bug.
| PeterCorless wrote:
| It is ironic in the extreme that the "Federalist" Society
| want power to devolve to the states. Jefferson is
| snickering in the grave.
| idiotsecant wrote:
| This will _not_ force Congress to suddenly become a
| responsible and capable legislative body. It will result in
| there being less government. Fewer rules to protect
| consumers, fewer rules to keep our air, water, and ecosystem
| healthy, fewer rules to prevent the powerful few from
| exploiting the many.
|
| Make no mistake about it, this is about giving more power to
| the powerful, and it's working. This is the swan song of
| America if we don't wake up.
| mywittyname wrote:
| > The existing system of administrative rules absolutely
| sucks for stability.
|
| This new system is even worse. At some point, the Judiciary
| will make a poor ruling. Perhaps this ruling is impossible to
| hold to, but maybe the executive branch decides to usurp the
| court of its own volition. Then what?
|
| The checks and balances system of our government only works
| when everyone plays nice. But if push comes to shove, then
| the executive branch is the one that holds all the power.
| They don't have to obey the legislator nor the judiciary --
| neither has any real capability to enforce their will.
|
| The country has been slow rolling into single pillar
| government structure for decades now. IMHO, this ruling is a
| huge step towards solidifying the executive branch as the de
| facto sole branch of government. Government agencies were
| provided a mechanism for all three branches of government to
| work together, legislators provided scope and leadership, the
| judiciary provided checks, and the executive provided the
| operations.
|
| Once the agencies are all gutted, a future administration is
| going get an opportunity to act on their own via executive
| authority and they will ignore any attempts by the court to
| stop them, because the court is literally powerless in all
| but word. And that's what opens the door to a president who
| begins seizing assets of political opponents.
|
| Lots of authoritarian countries masquerade as democracies
| because legislators and judiciaries are inherently powerless
| to stop executives.
|
| I know plenty of people will counter with the old way was
| supporting an authoritarian executive. But to them, I'll
| point out that the agency system has ~100 years of efficacy
| behind it.
| datavirtue wrote:
| Too much importance and deferral has been granted to the
| courts. It was a mistake to imbue that institution as the
| "third branch of government." I came to view that take as
| propaganda when I was younger and have soured increasingly
| more on the SCOTUS over these last few decades. I view that
| court as very dangerous and in need of being smacked down a
| peg or two.
|
| Congress has ultimate authority, period. So the SCOTUS
| running amok is a very bad look and smell.
| briandear wrote:
| Congress does have the authority. And it shouldn't be
| delegated to executive branch federal agencies. That's
| the point of Chevron.
| adastra22 wrote:
| I think you mean that's the point of overturning Chevron.
| adastra22 wrote:
| > I'll point out that the agency system has ~100 years of
| efficacy behind it.
|
| The agency system you are advocating for has only a few
| decades of history. Chevron was a 1984 decision, and didn't
| really rise to prominence until the Obama administration.
| ceejayoz wrote:
| The 1984 decision was a case _contesting_ the agency
| system 's authority. The result of that case confirmed
| the status quo, which existed long before 1984.
|
| https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Nat
| ura....
|
| https://en.wikipedia.org/wiki/Administrative_Procedure_Ac
| t
| adastra22 wrote:
| Up until the ACA, political platforms were accomplished
| by passing legislation. There was always ambiguity in
| that legislation to be resolved by courts, and nothing in
| today's decision changes that. But prior to Obama's
| administration, it was really rare the agencies would
| enforce policies _with no basis in the law whatsoever_.
|
| That's what Chevron deference is about. There is no law
| on the books that gives the FTC authorization to ban non-
| competes. They just argued that it kinda-sorta fell
| within the scope of their expertise and did it.
|
| That is by and large how the government has been run for
| the last decade and a half. It is not how the government
| has run for most of the last 100 years as you claim. Most
| of that time period the agencies stuck to the letter of
| the law, only deviating in rare circumstances.
| ceejayoz wrote:
| > There is no law on the books that gives the FTC
| authorization to ban non-competes.
|
| Sure there is; it's the Federal Trade Commission Act,
| which says "Unfair methods of competition in or affecting
| commerce, and unfair or deceptive acts or practices in or
| affecting commerce, are hereby declared unlawful."
|
| They, through the regulatory process, correctly
| determined that non-competes are unfair methods of
| competition.
|
| > But prior to Obama's administration, it was really rare
| the agencies would enforce policies with no basis in the
| law whatsoever.
|
| Obama's administration changed the makeup of the court
| with his loss of Scalia's seat, failure to pressure RBG
| to resign, and Trump's subsequent picks; that's what
| changed. The regulatory setup long predates his
| presidency. Chevron fell because the court got extra
| conservative members, nothing more.
| adastra22 wrote:
| I don't think it will be useful to either of us to
| continue this thread, so I am bowing out. Wish you the
| best.
| jeegsy wrote:
| I was going to comment this as well. Somehow we as a
| country managed to get by before 1984.
| ceejayoz wrote:
| We had agencies writing regulations well prior to 1984.
|
| The first: https://en.wikipedia.org/wiki/Interstate_Comme
| rce_Commission
|
| Chevron was a failed attempt at knocking that setup down.
| adastra22 wrote:
| Today's decision isn't striking down the concept of
| regulatory agencies.
| ceejayoz wrote:
| It drastically impairs their effectiveness.
| stale2002 wrote:
| > towards solidifying the executive branch
|
| The ruling is literally the opposite.
|
| The power is put in the hands of the courts and it is take
| away from the executive appointed agencies.
| aksss wrote:
| Nothing in this decision prevents regulatory agency
| rulemaking.
|
| Nothing in this decision "guts" the agencies.
| malcolmgreaves wrote:
| You have an incorrect understanding here. What was occurring
| now was not "government by administrative rule" as you put
| it. It was government by rules passed by Congress. Congress
| explicitly defers on specifics of some laws to agencies
| because it is not qualified to provide specifics. Agencies,
| staffed with experts, are capable of making fine-grained
| decisions on how to implement laws that Congress passes.
|
| This SCOUTS ruling means there will be *significantly more*
| ambiguity and instability in the federal government. *More*
| things will be up for destabilization by Republican activist
| judges. The outcome will be a government that works less
| efficiently and effectively.
|
| This is the Republican play book: purposely make the
| government worse, distract with absurd claims, then come
| election time lie and say that the Democrats want to make the
| Republican's version of bad government even more expansive.
| Every four to eight years, the Democrats clean up the
| Republican's mess. Government gets better. Then Republicans
| lie again and the cycle repeats.
| lolinder wrote:
| > This is the Republican play book: purposely make the
| government worse, distract with absurd claims, then come
| election time lie and say that the Democrats want to make
| the Republican's version of bad government even more
| expansive. Every four to eight years, the Democrats clean
| up the Republican's mess. Government gets better. Then
| Republicans lie again and the cycle repeats.
|
| You may already understand this, but just to make it
| explicit: the Democrats are not the good guys in this
| process. They benefit just as much as Republicans from good
| government being perpetually on the brink. They win the
| presidency because we're terrified of what Republicans will
| do if they don't. The system is currently structured to
| reward both sides for brinkmanship and that's why it sucks.
|
| We need a system that reduces the amount of change riding
| on any single election and _neither_ party wants a change
| to such a system. If SCOTUS is as much an extension of the
| Republican party as people here assume then I think we 'll
| find in 30 years that they badly shot themselves in the
| foot.
| binarymax wrote:
| This won't change Congress, which is more partisan than ever.
| It just means what we have in code now is what we are stuck
| with for a really really long time.
| lolinder wrote:
| That's why I included the "or": the other option is that
| the states will take up the slack (and they _will_ take it
| up, we 're already seeing that after _Dobbs_ ).
|
| We're at the scale now where majority rule at the federal
| level will usually leave 170 _million_ people unhappy. If
| we can 't get anything done at the federal level that might
| be a sign that we've hit the maximum size+diversity
| threshold for a functioning democracy and it's time to
| resolve more of our issues at a smaller, more local level.
| underlipton wrote:
| >If this forces Congress to get their shit together and pass
| lasting laws
|
| It won't. People will just suffer while federal workers sit
| around twiddling their thumbs, because they no longer have
| the power to figure out how to carry out their missions. And
| then this will be used to label their jobs as "waste" in
| order to justify shutting down their agencies. Tada, the real
| aim of vaporizing regulators and government services
| achieved.
|
| If you found our perennial government shutdown circus
| entertaining, you're in for a _treat_.
| kelnos wrote:
| I agree, but what's the solution? Aside from a complete
| overhaul of our system of government, which realistically
| would require armed revolution or some sort of bizarrely-
| peaceful military-supported coup d'etat.
|
| > _If this forces Congress to get their shit together and
| pass lasting laws_
|
| It won't. One of our political parties is hell bent on
| removing rights, reducing protections on workers, the
| environment, everything. They want a significantly smaller
| federal government. They wield enough power that there is no
| way that, for example, if Congress had to do all of the EPA's
| rulemaking jobs, anything would actually get passed.
|
| States have _some_ ability to take this on (for now, at
| least). California 's vehicle emission standards, which end
| up being the de-facto national standards, are one example.
| But I could easily see conservative SCOTUS not letting this
| stand, and coming up with bullshit reasons why those rules
| are unenforceable.
|
| And this is a part of the problem. The conservatives cry
| "states' rights!" at every turn, but they are still quick to
| strike down (at a federal level) things that progressive
| states do that they don't like. The other part of the problem
| is that there are quite a few policy things that you can't
| leave to a patchwork of states to decide for themselves. You
| need national unity for it to matter.
|
| > _It 's just going to be very uncomfortable for the next few
| decades as we sort it all out._
|
| Awesome, by the time that happens, I'll be an old man
| unlikely to see any of the benefits of it eventually becoming
| sorted out.
|
| More likely, I expect Trump to win this fall, and he'll
| dismantle and destroy the executive branch, and further
| degrade any trust in institutions that we have left.
|
| ...
|
| One thing I do think would help would be to fix
| representation in the House. House membership was regularly
| expanded as the nation's population grew, but has been left
| static for over a century now. One of the more reasonable
| methods I've seen for determining the total number of seats
| in Congress would have us at around 700 now[0] (vs. the 435
| we actually have).
|
| There are a lot of options here, and it can be instructive to
| look at other countries for comparison. The UK has a fifth of
| the US's population, but their House of Commons has 650
| members. But on the other end of the spectrum, India, with a
| population 4x that of the US, has a lower Parliament chamber
| with a maximum of only 552, though that's a constitutional
| requirement and perhaps harder to change. Anyhow, if we were
| more like the UK, the US House would have around 3,250
| members (a quite nice ~100k constituents per representative).
| That's probably a bit too unwieldy? But if we were more like
| India, the US house would shrink to 135, which is almost
| certainly far too few (mind-boggling ~2.5M constituents per
| representative).
|
| Not only would a larger House mean better representation for
| constituents (both being more proportional, and having each
| representative represent fewer people), but it would mean
| larger committees, and more people to tackle various
| rulemaking jobs that are currently handled by executive
| agencies. I do expect that a larger, more proportional House
| would end up being more left-leaning, so I'm obviously biased
| at least somewhat in my desire for this to happen. (As an
| aside, would fewer constituents per Congressional district
| make gerrymandering more difficult? Intuitively I think so,
| though I have no real basis for believing that.)
|
| [0] https://www.washingtonpost.com/opinions/2023/03/28/daniel
| le-... (cube-root method)
| gamblor956 wrote:
| The Roberts Court just decided to increase Congress' workload
| 100000x. This is one of those rulings that is going to get
| overturned in a few decades when it turns out to be completely
| unworkable to have Congress be subject-matter experts in
| thousands of areas.
|
| In 10 years when people wonder why their rivers are glowing
| green and everything in the ground is dying and there's a weird
| smell in the air, and corporations are just allowed to decide
| you pay them for no services and there's nothing you can do
| about it...this decision is going to be the reason.
|
| It looks like Thomas' and Alito's benefactors finally got what
| they spent most of the last decade trying to buy.
| slackfan wrote:
| 100000 * 0 is still 0
| diebeforei485 wrote:
| I'd rather the Supreme Court exercise judicial hubris once
| every 50 years than new administrations exercise administrative
| hubris every 4 years.
| kogus wrote:
| >Congress knows that it does not--in fact cannot--write
| perfectly complete regulatory statutes...
|
| Why not? Why can't Congress write complete regulatory statutes?
| Isn't that literally their job? Yes, it is. "Chevron defense"
| has been a way for Congress to shirk its duty for decades. If
| the law is ambiguous, courts must resolve the ambiguity. That
| is exactly what courts are for. To say that it would be better
| for an opaque, appeal-proof bureaucracy to have the final say
| was a ludicrous step on the path to our ever-growing executive
| tumor.
|
| The tone of your quotes from Kagan give the impression that
| federal agencies are "responsible" and able to use
| "discretion". But agencies are political animals, subject to
| the whims of the current president, who can potentially change
| every four years. Courts are much slower to change, and much
| less vulnerable to the political whims of the current
| administration.
|
| So many people are polarized and focused on winning
| presidential elections so they have their hands on the levers,
| that they never question whether the levers should be there in
| the first place. Perhaps politics would not be so polarized if
| the President did not have so much power, and the stakes were
| not so high.
| crazygringo wrote:
| > _Why can 't Congress write complete regulatory statutes?
| Isn't that literally their job? Yes, it is._
|
| No, it's not. That's like saying it's the CEO's job to write
| every design document in a company.
|
| It not only doesn't make sense -- it's not even possible from
| a perspective of information throughput.
|
| It sounds like you're saying that Congress should approve
| drugs rather than the FDA. Absolutely not. Congress should
| write the regulations that govern how the FDA operates, and
| then the FDA should operate.
|
| And let's remember -- if Congress doesn't like what a
| regulatory agency is doing, _it can pass legislation to
| change that_. If it doesn 't, we can assume it approves.
| Therefore the courts have no business stepping in -- except
| obviously when there is genuine conflict between laws or with
| the constitution. But that's not what you're talking about.
| kogus wrote:
| I do not expect Congress to atomically approve or
| disapprove every regulatory action. That is a straw man. I
| expect them to write clear laws that state what agencies
| can do, what they cannot do, and how they should do it.
|
| The case before the court is a good example of how the
| opaque and unaccountable nature of a federal agency allows
| them to serve their own self-interest at the expense of the
| citizens they are supposed to protect. Specifically,
| Congress specified in law that "authorizes the government
| to require trained, professional observers on regulated
| fishing vessels". But their law did not specify who would
| pay for these observers. So under Chevron, the agency got
| to decide. And, shocker! They decided they did not have to
| pay for it.
|
| This ruling stops that specific abuse, and hopefully many
| others. The actions of federal agencies is not generally a
| thing to be desired.
| jf22 wrote:
| Ok so now let's challenge what trained means, and what
| professional means, and what observer means, and what
| regulated means, and what fishing means, and what vessels
| mean and so on and so forth.
| kogus wrote:
| I would be surprised if courts had not already heard and
| decided cases on the meaning of all those terms. But if
| they haven't, then sure I guess they should. But
| precedent means they would only have to be decided once,
| not repeatedly litigated over and over as you seem to
| suggest.
| crazygringo wrote:
| > _That is a straw man. That is a straw man. I expect
| them to write clear laws that state what agencies can do,
| what they cannot do, and how they should do it._
|
| But laws can't do that in infinite detail. It's literally
| impossible. So it's not a straw man at all -- that was my
| point.
|
| At some point, regulatory agencies, like anything in the
| executive branch, have to decide for themselves how to
| get their job done. Because they have to do that a
| million times every day.
|
| If Congress didn't specify who will pay for the
| observers, it makes much more sense to leave it up to the
| agency than to the courts, except in cases of obvious
| abuse, corruption, etc. -- which this does not appear to
| be.
|
| I agree it sucks that the fishing vessels have to pay for
| the observers, but it seems obvious to me that the body
| to fix that is Congress. If the fishing industry can't
| get the agency to change it, then they should be
| contacting their Congressional representatives to change
| it. And Congress either will or won't, but that's
| literally who is in charge of this.
|
| It seems like a strange issue for the courts to get
| involved with, because there's no conflict with other
| laws or with the constitution.
| logicchains wrote:
| Congress isn't the CEO, the president is the CEO. Congress
| is the body responsible for writing the company's policy
| documents.
| tedd4u wrote:
| Yes. In an analogy to a corporation, the Congress is the
| Board, and the President is CEO. The board approves the
| corporate bylaws, the Congress approves the laws.
| somenameforme wrote:
| This does not change that in the least. What changes is
| that if e.g. the FDA is acting in a way that does not seem
| to fall within their legal mandate, then people have more
| freedom to take legal action to ensure they fall back to
| within that mandate. And I think this is _extremely_
| important. The United States it not a dictatorship. People
| should have the right to challenge organizations which seem
| to be going beyond (or even against) their legal mandate.
|
| If Congress is unhappy with how this plays out, they're
| completely free to clarify any sections that get
| challenged.
| vharuck wrote:
| >But agencies are political animals, subject to the whims of
| the current president, who can potentially change every four
| years. Courts are much slower to change, and much less
| vulnerable to the political whims of the current
| administration.
|
| Kagan agrees that executive agents are more political and
| shorter-lived than judges. Which is part of why she
| dissented. A federal judge has no constituents, no chance for
| replacement if the will of the people is ignored. A
| bureaucrat is appointed by an elected President, so there's
| at least an indirect avenue for accountability by the people.
|
| >If the law is ambiguous, courts must resolve the ambiguity.
|
| If it's a matter of law, the courts did resolve disputes in
| step one of the Chevron deference system. Federal Judges are
| considered experts in law and Congressional actions. If the
| dispute falls outside of the legal framework (e.g., Kagan's
| examples of which new polymers count as proteins, or
| reasonable ways to return the sound level in a national Park
| to a near-natural state), then the judge went to step two of
| Chevron deference: defer to the subject-matter experts in the
| agency. It is ridiculous to expect a judge to get a crash
| course in hundreds of complex fields that could actually
| prepare him or her for an informed ruling. Deferring to the
| people who've studied and practiced the topics seems like the
| better choice.
| goodluckchuck wrote:
| > implicit congressional delegation of interpretive authority
|
| That's not constitutional.
| w10-1 wrote:
| Justice Kagan for the longest time has been the liberal that
| tried to reconcile with the rest of the court.
|
| But she delivered her dissent orally and framed it broadly,
| signaling that there is no possibility of reconciliation.
|
| That unfortunately will lead to less balanced decisions.
|
| As for Chevron, this decision vastly expands the scope of
| political franchises by putting a brief review by a single
| (lifetime-appointed) federal judge on par with the entire
| administrative law process with hundreds of stakeholders and
| experts. It's not a win for rationality or settled
| expectations; it injects risk into every regulated field.
| throw0101c wrote:
| Some folks were predicting this:
|
| > _It has been nearly 40 years since the Supreme Court indicated
| in Chevron v. Natural Resources Defense Council that courts
| should defer to an agency's reasonable interpretation of an
| ambiguous statute. After more than three-and-a-half hours of oral
| argument on Wednesday, it seemed unlikely that the rule outlined
| in that case, known as the Chevron doctrine, will survive in its
| current form. A majority of the justices seemed ready to jettison
| the doctrine or at the very least significantly limit it._
|
| * https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
|
| Some of the back and forth during the trial:
|
| > _Justice Sonia Sotomayor agreed with Kagan. She doubted whether
| there can be a "best" interpretation of a law when the justices
| "routinely disagree" about a law's meaning. The real question,
| she said, is who makes the choice about what an ambiguous law
| means. And if the court needs a "tie-breaker," she continued, why
| shouldn't it defer to the agency, with its expertise?_
|
| > _Justice Ketanji Brown Jackson posited that the Chevron
| doctrine serves an important purpose. Under Chevron, she
| suggested, Congress gives federal agencies the power to make
| policy choices - such as filling gaps or defining terms in the
| statute. But if Chevron is overturned and agencies no longer have
| that power, she predicted, then courts will have to make those
| kinds of policy decisions._
|
| > _But Justice Brett Kavanaugh saw Chevron's deference to
| agencies differently. Chevron, he complained, "ushers in shocks
| to the system every four or eight years when a new administration
| comes in" and implements "massive change" in areas like
| securities law, communications law, and environmental law._
|
| * _Ibid._
|
| See also perhaps:
|
| *
| https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
|
| Generally: it seems that the USSC has been more been willing to
| throw out precedent and (not so?) settled law.
|
| The USSC is about to go on 'summer break', and so is releasing
| quite a few rulings all at once in a short time frame; a running
| tally seems to be available at:
|
| * https://www.scotusblog.com/author/scotusblog/
|
| Some seem to think this is a bit of a 'news dump' and 'DoS of
| attention':
|
| * https://slate.com/news-and-politics/2024/06/supreme-court-ju...
|
| * https://www.msnbc.com/alex-wagner-tonight/watch/-news-dump-f...
|
| * https://politicaldictionary.com/words/friday-news-dump/
| no_wizard wrote:
| They are definitely defying precedent more than any Supreme
| Court in recent history.
|
| The other thing this ignores is judicial bias. One positive of
| the Chevron ruling is that a well scoped agency with a clear
| agenda and expertise was able to oversee their domain of
| expertise and enforce rules under the Chevron Doctrine, which
| means in a well functioning agency (e.g. generally the SEC,
| FTC) didn't have to rely on lengthy and often partisan court
| trials.
|
| If you look at how we handle patents for instance, you have a
| good taste of what things going to look like going forward. It
| will completely hamstrung agencies and delay regulation
| enforcement for years if not decades. Unfortunately judges
| aren't without bias and partisanship and this will reflect in
| the venues that get used for these hearings, like how most
| patent cases end up in a small Texas court due to how favorable
| that court is to patent holders.
|
| This is going to be a mess. I don't foresee judges deferring to
| agencies to speed up judicial review. I see courts becoming an
| even bigger partisan battle ground than they already are.
| cogman10 wrote:
| > They are definitely defying precedent more than any Supreme
| Court in recent history.
|
| Than any court period. No supreme Court has been this bold in
| overturning precedent. Before this court, the last time that
| happened was brown v board of education.
| jjk166 wrote:
| > Chevron, he complained, "ushers in shocks to the system every
| four or eight years when a new administration comes in" and
| implements "massive change" in areas like securities law,
| communications law, and environmental law.
|
| New laws being enacted as governments change is not a shock to
| the system, it is business as usual. Overturning decades old
| precedents on the other hand...
| failuser wrote:
| I can't help but to read this as "we need a life-long
| dictator so we will not have to deal with the results of the
| elections"
| toomuchtodo wrote:
| Conservatives will not go into the night quietly.
| throw0101c wrote:
| > _Conservatives will not go into the night quietly._
|
| David Frum in 2018:
|
| > _Maybe you do not care much about the future of the
| Republican Party. You should. Conservatives will always
| be with us. If conservatives become convinced they cannot
| win democratically, they will not abandon conservatism.
| They will reject democracy. The stability of American
| society depends on conservatives ' ability to find a way
| forward from the Trump dead end, toward a conservatism
| that can not only win elections but also govern
| responsibly, a conservatism that is culturally modern,
| economically inclusive, and environmentally responsible_
| [...]
|
| * https://www.goodreads.com/work/quotes/56364271-trumpocr
| acy-t...
|
| * https://www.theatlantic.com/politics/archive/2018/01/fr
| um-tr...
| tpmoney wrote:
| The problem isn't "new laws being enacted as governments
| change", it was "new interpretations of existing laws being
| enacted as control of the executive branch switches parties".
| Net Neutrality either is or isn't the law of the land,
| depending on which president last got to appoint to the FCC,
| and is in charge now. Federal prosecution for possession of
| marijuana is or isn't the law of the land depending on which
| president is in charge of the DEA. It should be considered a
| complete failure of our system that the status of those
| things can change overnight, without debate or challenge and
| on the whims of which of the octogenarians running for
| president wins in November.
| jjk166 wrote:
| > It should be considered a complete failure of our system
| that the status of those things can change overnight,
| without debate or challenge and on the whims of which of
| the octogenarians running for president wins in November.
|
| I would consider an election to be the highest form of
| debate and challenge. It is not a failure of the system
| that the leaders the people choose get to lead the way they
| see fit, that is the point of the system.
| tpmoney wrote:
| Yes, the election of our legislators, whose job it is to
| craft laws. Not the election of one single person whose
| job it is to oversee the enforcement of those laws. Our
| government is built with its powers divided up, and the
| ability to change law intentionally kept out of the hands
| of individual deciders. The president isn't even
| (technically) allowed to send the military, of which they
| are the constitutional head, to war without congress'
| consent.
|
| If anything the last two elections should have taught
| everyone the dangers of resting so much power in the
| hands of a single person.
| jjk166 wrote:
| If the Executive is not allowed to decide how laws are
| executed, what exactly has he been elected to oversee?
|
| The agencies of the executive branch have been making
| decisions on how to enforce the law based on the
| president's discretion since Washington. That's how the
| constitution was set up to work. That's how congress has
| assumed every law they've passed would be handled. They
| have always been free to put more details into their laws
| to take the discretion out of the hands of the executive,
| and they have chosen not to, as is their prerogative.
| tpmoney wrote:
| Yes, the executive is allowed to decide how the laws are
| executed. And in the event that such laws are ambiguous,
| the courts are supposed to make a judgement on what the
| law is. If you default to just deferring to the
| interpretation of the executive, why have a legislative
| branch at all? Why not just pass a law that says
| "regulate all the things"?
|
| Our government is intentionally limited. It may only do
| the things it has been explicitly granted the power to
| do. When whether that power has been granted is
| ambiguous, that is something that needs actual judgement
| on. We should not have a default to the government's own
| interpretation. We certainly don't (try to) default to
| the courts just assuming whatever the police say the law
| is when it's ambiguous is what the law is. Why should we
| do that for other regulations?
| cryptonector wrote:
| Not _laws_ but executive agency rulemaking.
| pininja wrote:
| I was curious about cases where this played a role. Looks like
| the namesake case was about EPA Clean Air Act enforcement in the
| 80s (the outcome being regulation), and then an FCC ruling to
| classify internet providers as "information services" rather than
| "telecommunication services" and avoid stricter regulation (the
| outcome being deregulation).
|
| Overall, it seems the Chevron deference was a cornerstone of
| administrative law, affecting how agencies operate, how laws are
| enforced, and how the balance of power between branches of
| government was maintained. It's not clear that this always led to
| more or less regulation. I'm curious what the impact of deference
| was beyond cases that made it to court?
| torstenvl wrote:
| Until today, most national policy was set by "experts," i.e.,
| people whose careers, professional reputation, and emotional
| bonds are bound up in the industry. That is to say, the rich
| and connected in any given area of life. The SEC is staffed
| with "experts" in exchanging securities, i.e., successful
| traders, who are then expected to govern traders.
|
| The inexorable result of this status quo is corruption and
| oligarchy.
|
| https://www.upworthy.com/20-years-of-data-reveals-that-congr...
| pakyr wrote:
| Ironic that you link to an article about the Gilens/Page
| study, which showed that it was in large part _Congress_ that
| was unresponsive to popular opinion, not federal agencies
| like the SEC.
| thuuuomas wrote:
| Corporate governance is also decided by "experts", rife with
| corruption & oligarchy.
| fzeroracer wrote:
| Is Congress more or less corrupt than these experts?
| impalallama wrote:
| It seems like the biggest outcome is that as we all know
| Congress can't pass laws, so the judicial system just go a huge
| amount of power to interpret ambiguous laws (I'm not sure how
| controversial this but language is inherently ambiguous...).
|
| I expect a lot of court shopping to judges in Texas to get
| favorable result to abscond with any regulatory oversight
| Molitor5901 wrote:
| It Congress wants to change the law, they can. It's up to
| congress, not the administration, to make law. For decades it
| seems Congress has largely abdicated its legislative
| responsibility in exchange for the political ease of letting the
| administrative state, and the courts, make the law.
|
| Just because something has "precedence" doesn't mean it's right.
| Banning gay marriage had precedence, but that didn't make it
| right. Slavery, segregation, all had ample precedence. They were
| still absolutely wrong then as they are now.
| kemayo wrote:
| That said, it's also valid for Congress to decide to abdicate
| its powers.
|
| We've had 40 years of Chevron deference, during which time
| Congress wrote laws _expecting_ that this is how they 'd be
| interpreted. If they didn't want this behavior, they could have
| passed laws about it. Or included some boilerplate language
| within new laws about how the agency has to defer to courts for
| interpretation of those regulations.
|
| (Granted, by the same logic, they could presumably start adding
| some "these rules should be interpreted according to the
| agency's definitions" boilerplate to new laws, if they really
| want that.)
| Molitor5901 wrote:
| We had about a hundred years of segregation and slavery. _If
| they didn 't want this behavior, they could have passed laws
| about it._ Well, they didn't. The Supreme Court had to step
| in and do it for them.
| kemayo wrote:
| I don't think that slavery and fiddly details of how
| regulations are interpreted are really comparable. Morally
| or practically.
| Molitor5901 wrote:
| At one time, someone probably said something just like
| that about abortion, gay rights, segregation, seat belt
| use, minimum wage, and a host of other issues. There's no
| morality involved here. Regulators interpreted laws
| allowing segregation. Just because a regulator does
| something, and has done it for forty years, does not make
| it somehow right.
| foota wrote:
| Weren't both of these problems addressed by congress, not
| the courts?
| lupire wrote:
| What?? Slavery was ended (outsidr of prison system) by a
| law change.
| bobmcnamara wrote:
| What??? Slavery was ended by crushing the south in the
| civil war.
| ImJamal wrote:
| What??? Slavery was still legal in the North until the
| 13th amendment.
| bobmcnamara wrote:
| proc95 wasn't limited to the south.
| dcrazy wrote:
| Yes it was.
|
| > That on the first day of January, in the year of our
| Lord, one thousand eight hundred and sixty-three, all
| persons held as slaves within any State or designated
| part of a State, *the people whereof shall then be in
| rebellion against the United States*, shall be then,
| thenceforward, and forever free.
|
| Slavery was legal in the border states until passage of
| the 13th Amendment.
| jessriedel wrote:
| > it's also valid for Congress to decide to abdicate its
| powers.
|
| It's not. There's long standing precedent, since well before
| Chevron, that Congress does not have unlimited ability to
| delegate its powers. E.g., in A.L.A. Schechter Poultry Corp.
| v. United States, 295 U.S. 495 (1935) the Supreme Court said
| "Congress is not permitted to abdicate or to transfer to
| others the essential legislative functions with which it is
| thus vested." See also J.W. Hampton v. United States, 276
| U.S. 394 (1928).
|
| And this makes sense, because Congress is not a coherent
| unified agent. It's a messy institutions for distilling the
| wishes of the people.
| throw0101b wrote:
| > _E.g., in A.L.A. Schechter Poultry Corp. v. United
| States, 295 U.S. 495 (1935) the Supreme Court said
| "Congress is not permitted to abdicate or to transfer to
| others the essential legislative functions with which it is
| thus vested." See also J.W. Hampton v. United States, 276
| U.S. 394 (1928)._
|
| If you want to talk about precedent, 1825:
|
| > _It will not be contended that Congress can delegate to
| the Courts, or to any other tribunals, powers which are
| strictly and exclusively legislative. [23 U.S. 1, 43] But
| Congress may certainly delegate to others, powers which the
| legislature may rightfully exercise itself._
|
| * https://caselaw.findlaw.com/court/us-supreme-
| court/23/1.html
| jessriedel wrote:
| Right, Congress can delegate details and implementation,
| but it can't delegate basic legislation. That's obviously
| a burry boundary, but it's clear they can't abdicate
| their powers in general.
| erichocean wrote:
| > _it 's also valid for Congress to decide to abdicate its
| powers_
|
| Yeah, that's a "no." Taking away power from voters and
| handing it to unelected bureaucrats is specifically what the
| Constitution is meant to protect against.
|
| All legislative power in the government is vested in
| Congress, constitutionally. That power cannot be delegated to
| anyone, precisely because it would result in tyranny and
| disenfranchisement of voters (i.e. "us").
|
| The only way to enable this is to amend the Constitution,
| which, if that's what voters want, they can do.
| techostritch wrote:
| And yet, doesn't this give undue authority to the legal branch?
| like it just makes the legal branch the new administrative
| state. Reading through Chevron, it seems excessively logical to
| say that if a rule is vague, you defer to the people who made
| the rule to interpret it.
| epoxia wrote:
| For context. Roberts, Alito, and Thomas; who are still on the
| court were dissenting opinions on the gay marriage decision.
| Seeming to favor "precedence" when it's convenient.
| jliptzin wrote:
| They start with the ruling they want, and then work backwards
| to find the most reasonable path to get there.
| rty32 wrote:
| Well, for me I already knew this ruling months back. There
| is no surprise here.
| unethical_ban wrote:
| The reality is that our political system cannot do what you ask
| of it. It is reasonable to allow executive agencies delegated
| authority from Congress to regulate the details of things with
| implied oversight of Congress
|
| This is accelerationist or naive to think this is a good
| decision.
| cryptonector wrote:
| Arguably Chevron made it easier for Congress to abdicate its
| responsibility.
| impalallama wrote:
| Supreme court rules government illegal in landmark ruling...
| brigandish wrote:
| I found this[0] overview from a few months ago to be helpful, and
| doesn't fall foul of describing the justices' views as coming
| solely from their being conservative or not. One example:
|
| > Justice Neil Gorsuch told Prelogar that he was less concerned
| about businesses subject to changing regulations, observing that
| the companies "can take care of themselves" and seek relief
| through the political process. Instead, Gorsuch pointed to less
| powerful individuals who may be affected by the actions of
| federal agencies, such as immigrants, veterans seeking benefits,
| and Social Security claimants. In those cases, Gorsuch stressed,
| Chevron virtually always works for the agencies and against the
| "little guy."
|
| [0] https://www.scotusblog.com/2024/01/supreme-court-likely-
| to-d...
| gradus_ad wrote:
| The basic trend in America has been to defer power to an
| administrative state beholden to the Executive. This accumulation
| of power has the basic effect of enabling tyranny. To prevent
| tyranny it is necessary to check this concerning accumulation of
| Executive power.
| rootusrootus wrote:
| Does this decision do that, or does it just move the
| accumulation of power to a different branch? From bureaucrats
| who can be fired to unelected judges with lifetime tenure. How
| would you argue that this is an improvement?
|
| The response may be that Congress makes far more specific
| legislation, along with all the weird pitfalls that will come
| from that, and outsources the actual text to corporate
| lobbyists. That seems like a win only if you implicitly trust
| that corporations are working in our best interests. Is that a
| core plank in the conservative platform?
| maxwell wrote:
| It's not moving power from the executive to the judicial
| branch, it's forcing legislative responsibility back on
| Congress.
|
| Note that constituents in the U.S. have the worst
| representation of any OECD country. Worse than Commie China.
| America's biggest problem is the "Permanent" Apportionment
| Act of 1929.
| Spivak wrote:
| > it's forcing legislative responsibility back on Congress
|
| I mean it's not really going to do this in practice,
| because Congress can and will continue to be dysfunctional
| it just means that the court rather than the agency is
| going to make the call on what the law means. Without a way
| for the judiciary to be say, "this law is too ambiguous to
| rule on, Congress _must_ pass a law right now clarifying
| their intent, then we will issue a ruling " it's just going
| to be the judges making a call.
| maxwell wrote:
| If Congress doesn't want to do anything, and this one
| clearly doesn't (they look to be on pace for the fewest
| acts ever), then that just effectively kicks the
| responsibility down to State legislatures. Good for
| distributing power. You know, laboratories of democracy.
| bcrosby95 wrote:
| I agree. Congress is far too small. Both the house _and_
| senate. There 's too much work for them to do.
|
| I would go even further: maybe congress should be expanded
| such that we have different chambers for different aspects
| of life. This way we could elect a lawmaker for each
| domain... e.g. 1 focused on environmental legislation, 1
| focused on financial legislation, etc... rather than trying
| to cram all sides into a single unicorn lawmaker.
| tboyd47 wrote:
| > How would you argue that this is an improvement?
|
| Not all branches have the same risk of tyranny. The Executive
| branch consists of about 1 million unelected government
| employees, following a rigid command hierarchy who wield
| power over every aspect of society. The Judicial branch
| consists of about 900 federal judges who work on a limited
| backlog of cases. No one from the Supreme Court is going to
| come knocking on my door if I defy one of their edicts, but
| as for the Executive branch, you can count on it.
| throwaway4220 wrote:
| My Trojan program is written on only about 5000 lines of
| code, but runs on 5 million machines around the world. It's
| really not my fault you should blame the computers for
| stealing your data. I'm not personally doing it.
| Gormo wrote:
| > Does this decision do that, or does it just move the
| accumulation of power to a different branch?
|
| Yes, it does do that; no it does not move the accumulation of
| power to a different branch. It restores the distribution of
| power among the distinct branches of government, and stops
| executive-branch agencies from operating as legislature,
| executive, and judiciary all rolled into one.
| GenerWork wrote:
| This is unbelievably good news! It's time to move power out of
| the hands of bureaucrats back into Congress where it belongs.
| shepherdjerred wrote:
| Congress are the bureaucrats
| vaadu wrote:
| Congress are the elected bureaucrats Agency folks are
| unelected bureaucrats
| HDThoreaun wrote:
| Congress is one of the least effective institutions in this
| country
| vaadu wrote:
| The purpose of Congress is to make these kinds of decisions.
| They pass the buck so they don't have a voting record that an
| election opponent can use against them.
|
| They need to do their job.
| HDThoreaun wrote:
| Unfortunately saying they need to do their job will not
| make it so
| cryptonector wrote:
| Because of Chevron.
| intended wrote:
| Yes! I look forward to network and IT related laws being
| created by congress! They've got the age and experience to
| truly get it right!
|
| /s
| sandworm101 wrote:
| So if courts aren't to defer to agencies on such matters, to
| where do they look? Congress? The executive? We can hate on
| regulatory agencies all day long, but they are least get stuff
| done. They show up to work and figure out how to move forwards.
| This decision seams a win for those political groups who, rather
| than actual fix anything, are bent on throwing sand into the
| gearbox.
| jimmyjazz14 wrote:
| "They get things done" has been one of the selling points for
| more than a few tyrannical regimes throughout history.
| sandworm101 wrote:
| And comparing the likes of the IRS or FDA to the tyrannical
| regimes of the past is the hallmark of sovereign citizens,
| tax protestors, healthcare deniers, and other bunker-dwellers
| who see view traffic tickets as an attack on their god-given
| right to drive a Tesla while trading bitcoin on a cellphone.
| radley wrote:
| If I'm not mistaken, it's a selling point for functional
| governments too.
| jjk166 wrote:
| Because it's not the problem people have with any of those
| tyrannical regimes.
| bbayles wrote:
| What did they do prior to 1984?
| cogman10 wrote:
| Everyone deferred to the agencies. The 1984 ruling was one of
| the first where Chevron challenged an agency's authority.
| throw0101c wrote:
| > _Everyone deferred to the agencies._
|
| Delegating goes back to about 1825, and deferring
| ambiguities to the Executive has precedents to the
| 1920/30s:
|
| *
| https://constitution.findlaw.com/article1/annotation03.html
| sandworm101 wrote:
| They did Chevron. Chevron was brought as a challenge to what
| was happening. The Chevron court basically said, "keep doing
| what you are doing. We are OK with it." Post-Chevron there
| was just a name and a more codified description of the past
| approach.
| bell-cot wrote:
| Before proclaiming that this outcome is horrible - Please
| consider that the Good Guys (your opinion) might not win the
| election in November. And that you might not want the courts
| auto-deferring to all the plausible-ish interpretations of
| ambiguous laws which gov't agency officials appointed by the Bad
| Guys (your opinion) might suddenly add the Official Agency
| Interpretations next year.
| aklemm wrote:
| From either side, relying on the judiciary over active, well-
| functioning legislature is bad.
| bell-cot wrote:
| True. And having Santa Claus make all the decisions would be
| even better.
|
| Unfortunately, neither Santa Claus nor an active and well-
| functioning legislature seem to be available.
| FireBeyond wrote:
| Some would also argue that the judiciary is not
| particularly well-functioning, so why are we acting like
| that's the best option in the absence of alternatives?
| AmericanChopper wrote:
| It's not bad to have due process. If some unelected regulator
| decides to invent a new interpretation for a law, and this
| causes some form of damages to you, then the courts are
| absolutely the appropriate venue to seek your remedy. That's
| what due process is. This just puts judicial oversight back
| into a process where it had (for rather poor reasons imo)
| previously been removed.
| w4 wrote:
| Exactly this. Unchecked administrative power in the Executive
| has left very dangerous tools laying about for would be
| autocrats:
| https://en.wikipedia.org/wiki/Unitary_executive_theory
|
| This will certainly make life harder for the regulatory
| agencies, and I don't want to minimize the difficulty that
| represents, but this decision reinstates an important check on
| the Executive's power at a very critical juncture in our
| nation's history.
| kergonath wrote:
| That is not a question of good guys and bad guys. It's just
| that a system where the legislative branch micro-manages things
| like electrical safety in new homes to what you're allowed to
| put in baby formula is completely unworkable. If "the bad guys"
| get into power, then the agency is still checked by the courts
| that are perfectly able to stop blatant overreach.
|
| OTOH, congress physically cannot keep abreast of the state of
| the art in all of medicine to have an informed opinion on
| whether to ban or control a specific compound that turned out
| to be carcinogenic, to give but one example.
| bell-cot wrote:
| Currently, in the minds of much of the American electorate,
| it _is_ good guys and bad guys.
|
| You are correct that the US Constitution is poorly suited to
| governing a nation of ~1/3 billion people in the modern
| world. Unfortunately, the current political environment make
| fixing things impossible.
| free_bip wrote:
| > You are correct that the US Constitution is poorly suited
| to governing a nation of ~1/3 billion people in the modern
| world.
|
| Which is exactly why this is such a terrible decision.
| catlikesshrimp wrote:
| What political environment makes fixing things possible?
| Countries scraping their constitutions tend to be poor ones
| just finishing revolutions which more often that not
| creates dictators (1799 France included). Except, very few
| exceptions
| bell-cot wrote:
| I was going to cite France as an exception, 'till you
| mentioned it.
|
| https://en.wikipedia.org/wiki/French_Republics
|
| Admittedly, far more an exception than an ideal to
| emulate.
|
| The other "typical case" is countries liberated from
| military occupation...
| vdqtp3 wrote:
| This decision leaves it perfectly up to Congress to write a
| law stating "such and such an agency shall determine,
| maintain and enforce electrical standards". It just means the
| agency can't decide to do so on their own.
| stvswn wrote:
| It is incorrect, but widespread among left-leaning pundits,
| that this ruling will force Congress to micromanage
| everything that would normally be left to the agencies.
| Agencies can still make rules. If Congress would like to be
| out of the details business, they can even write statutes
| that explicitly delegate rule making to the agencies. What
| this does is prevent agencies from acting in ways that are
| easily interpreted as _not_ conforming with law. The Chevron
| test told judges that they have to defer to the agencies
| _even when_ they conclude that the agencies are misreading
| the laws, as long as the agencies aren't being manifestly
| unreasonable. This has led to agencies very savilly expanding
| their power without any new statutory authority simply
| because they have good lawyers who know how to craft it in a
| way that survives a Chevron test. The SC just said something
| I find completely reasonable: from now on, judges have to
| interpret the law as its written and decide cases based on
| whether or not the agency is complying with the law. They
| cannot abrogate their duties to be the experts on legal
| analysis simply out of a desire to defer to the agency's
| interpretation. I think it's correctly decided because
| Chevron is an illogical mess -- why is it that in one
| situation and one situation only, our legal system treated
| one of the parties in a suit as inherently having more
| authority to intepret the law than a court itself? It is not
| persuasive to me that we should say "well, because the courts
| can't be experts," as this is not an argument that works in
| any other situation where a court must make legal rulings in
| the face of experts -- such as bankruptcy proceedings,
| antitrust cases, etc.
| skrbjc wrote:
| Yes, exactly. Perfectly put.
| karmasimida wrote:
| The US health care is so expensive, is largely due to
| regulation like HIPPA that makes administrative cost
| astronomically high.
|
| It is not a good idea to have those agencies roam freely
| imposing regulation that they might not able to foresee the
| economic consequences
| throwup238 wrote:
| The Chevron deference case is one of the most cited court cases
| in the US and this decision threatens to throw Federal
| regulations into chaos as a bunch of Districts redecide decades
| of precedent. Since the appeals courts can reach contradictory
| decisions and keep them in play until the Supreme Court makes a
| conclusive decision, any company at the national level will
| have to figure out how to square that circle.
|
| Regardless of where you are on the political spectrum, this is
| going to cause a practical mess just like the Dobbs decision,
| except Chevron deference impacts every area of federal
| regulation.
| AuryGlenz wrote:
| Sometimes you need to refactor the code, even when it's going
| to be a huge mess to do so.
| CobrastanJorji wrote:
| Yes, sometimes you just need to refactor the code in prod
| by surprise via force pushing and telling everybody else to
| start fixing their failing integration tests.
| throwup238 wrote:
| The courts are incapable of refactoring by design. They can
| only decide the cases litigated before them, they can't
| take a holistic view of the legislation and put forward
| coherent reforms.
|
| In my career I have never seen messy refactorings go well.
| They are carefully planned and executed piece of by piece
| instead of throwing everything out of the window.
| mywittyname wrote:
| This is more like deleting the backups then shutting off
| the A/C in the server room.
|
| It's not going to be feasible to run the country this way.
| So something has to give, either the agencies tell SCOTUS
| to fuck off, agencies stop operating, or they file suit for
| every little thing and clog up the already overworked
| justice system (which I guess means that we end up with
| behind closed doors mediation).
|
| Since the President is the boss of agency heads, I guess
| it's up to the President to decide their favored course of
| action.
| AuryGlenz wrote:
| The country ran just fine before 1984. Some would argue
| better, though I couldn't say if they were right.
| ceejayoz wrote:
| > The country ran just fine before 1984.
|
| Yes, and Chevron decided "let's keep it that way". It
| established SCOTUS precedent for what was already the
| status quo.
| fzeroracer wrote:
| Are you aware of how polluted cities and towns were in
| the 70s? Why the EPA came into existence? Why Chevron
| became codified into law?
| yongjik wrote:
| Err, we've seen what happened when the Bad Guys (TM) won the
| election. They pack the Supreme Court with their friendly Bad
| Guys (TM) so that the Court can make decisions in their favor.
| (If you object, feel free to switch Good/Bad guys, and it will
| be still true.)
|
| So "Please consider that supreme courts may also limit the
| power of the Bad Guys" is clearly false, because when the Team
| X has power, they will make sure Team X is in every branch of
| the government, and their justices will decide whatever the
| executive branch is doing is very kosher and constitutional, as
| long as it's their team.
|
| In the end, the system can only hold as long as even "Bad Guys"
| are good enough that they're not willing to break the system
| from inside. You keep electing the Real Bad Guys, the system
| will fail. Checks and balances aren't magic.
| stvswn wrote:
| Simply because you're not a fan of the outcomes doesn't mean
| that the appointments of justices Gorsuch, Kavanaugh and
| Barrett were illegitimate. Chevron deference started under
| the Stevens court and the deference it entailed related to
| the Reagan administration. That this has become a
| conservative hobby horse since then has nothing to do with
| policy preferences that only cut one way in a partisan way,
| and has everything to do with a deeper disagreement over the
| separation of powers and the role of the judiciary. Chevron
| deference isn't "the system" it's simply one precedent that
| has been faltering for years. There's no reason for any
| "side" to see this as the sky falling unless you really,
| really want to preserve some federal regulation that is TOO
| IMPORTANT to allow statutes to clarify.
| r2_pilot wrote:
| >Simply because you're not a fan of the outcomes doesn't
| mean that the appointments of justices Gorsuch, Kavanaugh
| and Barrett were illegitimate.
|
| I agree; just because I don't like their made-up and pre-
| determined justifications doesn't make their appointments
| illegitimate; that would be Mitch McConnell's blatant
| disregard for the timely execution of his responsibilities
| basically without recent precedent and certainly
| inconsistent between the times he did actually fulfill his
| duties.
| cthalupa wrote:
| One of Gorsuch or Barrett must be illegitimate if you want
| to be consistent.
|
| Scalia should have been replaced by Obama, or Ginsburg
| shouldn't have been replaced by Trump. All of the arguments
| that the Republicans made about Scalia's replacement were
| equally applicable to Ginsburg's.
| fireflash38 wrote:
| Nevermind the huge swaths of non-SC justices whose spots
| were held open by McConnell and replaced by Trump.
| croes wrote:
| The agency personal can be changed if the Good Guys win again.
|
| That's not true for judges, so any damage by the Bad Guys lasts
| longer.
| pavon wrote:
| While that is a very important thing to consider when
| evaluating any law or judicial ruling in general, I don't think
| it shifts my view much in this case.
|
| Foremost, this decision makes it easier to overturn regulations
| while making it harder to create them. This strictly moves the
| balance of power to the right regardless of who controls the
| presidency or congress at any moment.
|
| Secondly, it moves power out of the executive and to the
| judicial, which currently leans right, and will likely continue
| to for decades.
|
| Lastly, there were always limits as too how far of an
| interpretation they could push because it still has to be
| reasonable, and still has to follow many other rule-making
| processes we have. The left got lucky in that the Trump
| administration was particularly incompetent at following either
| of those, which we can't always depend on, but even without
| that it provided some bumpers.
| CuriouslyC wrote:
| The court is partisan as all hell. If the side that wants to
| poison water and air to save money for industry wins, the court
| is going to high five it and laugh.
| fireflash38 wrote:
| You mean that thing that a certain political party had taken
| great pains to stack with partisans judges will now get to
| decide even more?
| Gormo wrote:
| > Please consider that the Good Guys (your opinion) might not
| win the election in November.
|
| How could they possibly win? They aren't even on the ballot!
| ChrisArchitect wrote:
| More discussion: https://news.ycombinator.com/item?id=40821007
| dctoedt wrote:
| Time for Congress to start aggressively using its express
| constitutional power (under the Exceptions and Regulations Clause
| of Article III) to circumscribe federal courts' power to set
| aside congressional directives such as the ones that led to
| _Chevron_ deference. "Separation of powers" is nowhere to be
| found in the Constitution; it's a bootstrapped creature of power-
| seeking judges.
| tmountain wrote:
| They can barely agree to increase the debt ceiling.
| lovethevoid wrote:
| That's actually one both parties agree vehemently on, it just
| depends on who can get what they want most out of the
| approval.
|
| It's a negotiation tactic effectively, and no president wants
| to be behind the failure to do so, which leads to the
| opposing party having the upper hand to negotiate substantial
| wins in the process.
| rayiner wrote:
| > "Separation of powers" is nowhere to be found in the
| Constitution; it's a bootstrapped creature of power-seeking
| judges.
|
| Article I, Section 1 says: "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."
|
| Article II, Section 1 says: "The executive Power shall be
| vested in a President of the United States of America."
|
| Article III, Section 1 says: "The judicial Power of the United
| States, shall be vested in one supreme Court, and in such
| inferior Courts as the Congress may from time to time ordain
| and establish."
|
| Three specifically named powers, which are specifically
| assigned to three separate bodies, at the beginning of three
| separate sections. Gee, I wonder what the framers could
| possibly have been going with all this? I wish they had written
| papers elaborating on this concept that's clearly reflected in
| the text: https://press-
| pubs.uchicago.edu/founders/documents/v1ch10s14...
|
| It's hard to imagine anything that is more part of the
| constitution than separation of powers. If you handed the
| constitution and a copy of the federalist papers to an alien
| who knew nothing else about our society, they would understand
| that the constitution requires separation of powers.
| throw0101c wrote:
| The idea of Congress delegating certain powers dates back to
| 1825, with further precedents from the 1920s and 1930s (and
| more recent):
|
| * https://constitution.findlaw.com/article1/annotation03.html
|
| It's not a new idea that some ambiguities are left to the
| Executive to figure out.
|
| The _Chevron_ decision was basically a codification of what
| had been done for decades before it.
| rayiner wrote:
| The early precedents were things like delegating to the
| customs department lists of items for tariff schedules.
| Virtually all the precedent reallocating the power to make
| law was upheld under the threat of court packing in the
| 1930s and is suspect and ripe for revisiting.
| throw0101c wrote:
| From the original, unanimous, _Chevron_ ruling:
|
| > _When a challenge to an agency construction of a
| statutory provision, fairly conceptualized, really
| centers on the wisdom of the agency 's policy, rather
| than whether it is a reasonable choice within a gap left
| open by Congress, the challenge must fail. In such a
| case, federal judges--who have no constituency--have a
| duty to respect legitimate policy choices made by those
| who do. The responsibilities for assessing the wisdom of
| such policy choices and resolving the struggle between
| competing views of the public interest are not judicial
| ones: "Our Constitution vests such responsibilities in
| the political branches."_
|
| * https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._N
| atura....
|
| That was in 1984: long past alleged, so-called "the
| threat of court packing" period.
| dctoedt wrote:
| Yes, and what exactly _is_ "the judicial Power"? Roberts,
| C.J., famously said that it was that of an umpire calling
| balls and strikes.
|
| As a far-fetched analogy, _Chevron_ deference is a bit like
| having a committee of uninvolved players and managers
| determining where the strike zone will be for each ballpark.
| If the team owners agree on such a meta-rule, then the
| umpires need to call balls and strikes based on that meta-
| rule, using the strike zones determined by the committee. It
| 's not up to the umpires to decide that the owners can't
| delegate that authority to the committee.
| megaman821 wrote:
| If Congress had their shit together enough to reign in the
| federal courts, there wouldn't be so many federal laws that
| were ambiguous in the first place. Not sure what the shockwaves
| of this Chevron decision will be, but I am a fan of forcing the
| legislative branch to legislate again.
| trealira wrote:
| This isn't going to make Congress write more legislation. No
| politician that was extremist is going to start compromising
| and proposing legislation. This simply shifts power from the
| executive branch to the judicial branch. It just makes the
| question of which party appoints federal judges even more
| important in the outcome of senate/presidential elections.
| relaxing wrote:
| This will do nothing to force them to legislate.
|
| Zero regulation is what they want.
|
| Removal of regulation while they sit back and reap the cash
| rewards is precisely the designed outcome.
| k33n wrote:
| How do you suggest that Congress "rein in" a coequal branch
| of government?
| megaman821 wrote:
| They could expand the courts, institute justice term
| limits, or in this specific case, pass a law that says
| ambiguous terms in a law are to be interpreted by the
| Executive branch. If they are lazy, they could probably
| just stick in a clause that says the specific rules for
| this section will be created by the EPA or whatever
| relevant agency; and that would also comply with the
| ruling.
| rswail wrote:
| I'm impressed that they can so easily dispose of 40 years of law
| making by Congress that assumed that agencies would interpret the
| statutes and make rules for regulating their area of authority.
|
| Now Congress is going to have to specify every possible
| consequence of laws in the statutes, otherwise a judge will
| decide.
|
| So agencies will not have any power to actually regulate.
|
| Awesome logic work, but terrible legal thinking without
| considering the side effects of the decision.
| HDThoreaun wrote:
| Congress can still delegate chevron style. They just have to
| explicitly do so
| Balgair wrote:
| There's already been a big issue with 'regulatory capture'
| and lobbying in government.
|
| Congress is only going to delegate when some other entity,
| likely a business, isn't already writing the law/regulation.
|
| A concrete example: Boeing is going to up their lobbying game
| _hard_. They can now not only help write the laws, but help
| choose who says they 've broken them. There is no way that it
| will be good for passengers before it is good for
| stockholders.
| deltarholamda wrote:
| This is done with the regulatory agencies now, i.e. the
| revolving door from government agency to private sector.
|
| Worse, in some ways, because there's no real paper trail,
| such as donations to politicians or PACs.
| autoexec wrote:
| Bribes to politicians rarely include paper trails, Super
| PACs don't either. The problem of vast amounts of dark
| money in politics is well documented.
| megaman821 wrote:
| Good thing people from Boeing and Goldman Sachs aren't
| working in these agencies now, making these rules for the
| advantage of their former/future employer.
| dotnet00 wrote:
| Good thing Boeing hasn't already been doing that /s
| the_gastropod wrote:
| Burning a man alive with a stubbed toe: "He was already
| injured!".
|
| Yes. Lobbying is already a huge problem. This ruling
| exclusively makes it worse.
| dotnet00 wrote:
| How is it worse that now they need to lobby Congress
| instead of just getting the FAA to say that they can
| certify their planes themselves?
| skywhopper wrote:
| The fact that Chevron has been the law of the land for 40
| years means that Congress _did_ intend for it to continue to
| be the case. It's ridiculous to claim otherwise.
| maxwell wrote:
| What side effects?
| curiousllama wrote:
| This basically flips the judicial review logic from "did the
| regulator act within the scope of the law?" to "are there
| other ways the regulator could have acted that would also be
| within the scope of the law? If so, the judge decides which
| set of actions the regulator must take"
|
| I.e., anything Congress does not explicitly state in a law is
| now determined by federal judges. At the extreme, this is
| aggrandizing a very wide scope of power to low-level federal
| judges to essentially ignore congressional intent.
| nimish wrote:
| The entire purpose of the judiciary is to interpret the
| law. This is what they are supposed to do.
|
| Chevron curtailed this essential power in favor of taking
| an agency at its word, which is quite a dangerous stance.
| stfp wrote:
| Air pollution is dangerously low, it was time to reign in
| the eco-terrorists at the EPA :|
| autoexec wrote:
| Millions of Americans currently don't have clean drinking
| water. Get ready for that situation to get much much
| worse.
| Dylan16807 wrote:
| The agencies still had to act within their bounds, and
| they have a lot more relevant expertise than effectively-
| random judges.
|
| Plus centralizing it makes things much more clear and
| consistent.
|
| Hell, if we just took regulatory agencies and put judges
| in charge somehow that would be a lot better than chaos
| mode.
| dilippkumar wrote:
| > Now Congress is going to have to specify every possible
| consequence of laws in the statutes, otherwise a judge will
| decide.
|
| > So agencies will not have any power to actually regulate.
|
| This honestly sounds perfect.
|
| If this is the actual end result of this ruling, we'll all be
| in a much much better place.
| unethical_ban wrote:
| We disagree. I prefer an effective administration of
| government.
| Mountain_Skies wrote:
| What's your definition of effective and how are you
| evaluating if the administrative government is meeting your
| definition?
| unethical_ban wrote:
| I think a technocratic executive bureaucracy, created and
| overseen by the legislature, is better than demanding the
| legislature directly craft all regulations and have
| judges adjudicate every nuance.
| Gormo wrote:
| Why do you think that's better? Whose priorities and
| interests do we expect these 'technocratic executive
| bureaucracies' to pursue if allowed to be the arbiters of
| their own authority, and what mechanism would ensure they
| remain accountable to the public and operate within the
| applicable constraints of prevailing law and the
| constiution?
| unethical_ban wrote:
| Why do you think a crippled group of 500 generalists
| should write every single detail of regulatory code for
| every facet of American life?
|
| Why do you think federal agencies are arbiters of their
| own authority? Congress created them, Congress can reel
| them in.
|
| I don't mean to say that executive agencies shouldn't be
| held to the Constitution or the law. Who says they
| shouldn't? But they should be allowed to have a broad
| mandate.
|
| Maybe, MAYBE some kind of rubber stamp process where
| legislators get a 90 day window on rejecting new
| regulations with a "default approve". But I have no faith
| that a modern society can have all rules and edge cases
| pre-emptively defined in law.
| Gormo wrote:
| > Why do you think a crippled group of 500 generalists
| should write every single detail of regulatory code for
| every facet of American life?
|
| They shouldn't. No single entity should ever be allowed
| to "to write every single detail of regulatory code for
| every facet of American life".
|
| Thankfully, with this decision, we have restored a
| situation where law and policy are developed and refined
| through the interplay of disparate branches of government
| with ultimate accountability to the public itself, with
| edge cases handled by the specialists who actually have
| the relevant expertise in interpreting law.
|
| > I don't mean to say that executive agencies shouldn't
| be held to the Constitution or the law. Who says they
| shouldn't?
|
| Well, that's the implicit argument of the people who are
| saying they should continue to be allowed to act as the
| arbiters of their own authority, without judicial
| oversight.
|
| > But they should be allowed to have a broad mandate.
|
| Unelected appointees who are hired on the basis of their
| expertise in a technical field, without necessarily
| having any special competence at handling the _normative_
| aspect of their duties, should absolutely not have a
| broad mandate to decide what the limits of their own
| authority are.
| unethical_ban wrote:
| >Well, that's the implicit argument of the people who are
| saying they should continue to be allowed to act as the
| arbiters of their own authority, without judicial
| oversight.
|
| No, that's no my implicit argument so you're wrong on the
| facts. And you keep saying they are the arbiters of their
| own authority.
|
| Congress is.
| CuriouslyC wrote:
| I hope you enjoy drinking your poison water and breathing
| your poison air as much as the companies that skirt
| environmental regulations enjoy their cost savings.
| Dalewyn wrote:
| Agreed. If Congress or Executive agencies don't want the
| judiciary interpreting the laws in various ways they should
| write laws with no room for interpretation.
|
| The couts giving/forcing (back) power to the legislature
| where laws are supposed to be written, deliberated, and
| passed is a very good thing.
| ModernMech wrote:
| Exactly how do you write a law that has no room for
| interpretation? What does that process look like exactly,
| and how do you achieve it at scale in a changing and
| dynamic world where the meanings of words change over time?
|
| I think what you're saying is the equivalent of "just write
| software without bugs and everything will be fine"
|
| Yeah sure... but easier said than done.
| Dalewyn wrote:
| Generally speaking, a specific law is always better than
| a vague law. It allows for more fairer enforcement and
| better understanding of the law concerned.
|
| If the words written on paper don't actually mean
| anything and can be interpreted wildly, what is even the
| point of passing laws?
|
| Writing and passing unnecessarily vague laws open to
| interpretation and saying your job is done is like
| Bethesda publishing a bug infested game and saying they
| have a finished product. No, your work is shit, go back
| to the workshop.
| HumblyTossed wrote:
| > This honestly sounds perfect.
|
| > If this is the actual end result of this ruling, we'll all
| be in a much much better place.
|
| There's no way. But, I guess we'll find out. I hope HN is
| around in 10 years so we can see who is right.
| lcnPylGDnU4H9OF wrote:
| > So agencies will not have any power to actually regulate.
|
| This isn't accurate. Agencies will just need to work with
| Congress to help them write laws which make sense according to
| how the agency would like something to regulated.
| waveBidder wrote:
| except agencies need to be able to work on timelines faster
| than once a decade
| Red_Leaves_Flyy wrote:
| And Congress too.
| young_breezy wrote:
| It's lobbyist who will fill this gap
| bcrosby95 wrote:
| Lobbyists will fill the gap, and 70+ year old judges will
| rule on the intricacies of nuclear regulation by harkening
| back to 15th century English law.
| Red_Leaves_Flyy wrote:
| Can't wait for an American Chernobyl disaster in a civil
| society that looks like handmaids tale.
| lizardking wrote:
| We're still doing the handmaid's tale thing?
| theossuary wrote:
| Multiple states are currently legally mandating teaching
| the Bible in schools, so... Yeah?
| AvocadoPanic wrote:
| Blessed be the fruit.
| FactKnower69 wrote:
| It's so funny when people from common law countries
| pretend like they have a functioning legal system
| JumpCrisscross wrote:
| > _funny when people from common law countries pretend
| like they have a functioning legal system_
|
| As in the oldest continuously-operating legal systems?
| __loam wrote:
| So agencies will not have any power to actually regulate.
| joshdata wrote:
| > Agencies will just need to work with Congress to help them
| write laws
|
| This is already exactly how it works.
|
| One reason why legislating takes so long is because there is
| an enormous amount of collaboration between legislators and
| agencies to get it as right as they can.
| sqeaky wrote:
| Needing to go to someone else to exercise power is literally
| not having power.
| skywhopper wrote:
| Congress literally could not work this fast even if they were
| inclined to.
| hindsightbias wrote:
| > easily dispose of 40 years
|
| As I tried to explain to people in 2016, your kids are going to
| be living with the consequences of your vote for generations.
| We are in a new era of judicial supremacy and they are out of
| bubble gum.
| catlikesshrimp wrote:
| >"We are in a new era of judicial supremacy"
|
| Are you from Latin America?Martinelli (Panama) has been
| complaining of "Civil Dictatorship" since being on trial and
| hidden inside the Nicaraguan Embassy. Chavez (Costa Rica) is
| denouncing a Democratic "Dictatorship then Tyranny" because
| he finds independece of powers (Executive, Legislative and
| Judicial) cumbersome.
|
| Dangerous direction, people complaining about power balance
| checks
| cthalupa wrote:
| The already extremely powerful judiciary continually
| increasing their power and removing the power of the
| legislative and executive branches is not exactly something
| that encourages power balance checks.
|
| As for whether or not the person you are replying to is
| from a certain region of the planet - what are you trying
| to imply here? I'm from the USA - does that mean that I
| agree with everything Trump or Biden says? This is a weird,
| and IMO, distasteful, way to make an argument.
| catlikesshrimp wrote:
| There are political currents which critize traditional
| media and independence of powers. Like another current
| touting "A new world order" (offtopic)
|
| The balance of powers is paramount. And it is usually the
| executive which grabs it when the oportunity arises: not
| only wars, but also exceptions like terrorism prevention
| (overblown) and the recent covid pandemic (all countries)
| rufus_foreman wrote:
| >> Now Congress is going to have to specify every possible
| consequence of laws in the statutes, otherwise a judge will
| decide.
|
| It has already been that way for a while. From the decision:
|
| "Because Chevron's justifying presumption is, as Members of the
| Court have often recognized, a fiction, the Court has spent the
| better part of four decades imposing one limitation on Chevron
| after another. Confronted with the byzantine set of
| preconditions and exceptions that has resulted, some courts
| have simply bypassed Chevron or failed to heed its various
| steps and nuances. The Court, for its part, has not deferred to
| an agency interpretation under Chevron since 2016."
|
| ...
|
| "Given the Court's constant tinkering with and eventual turn
| away from Chevron, it is hard to see how anyone could
| reasonably expect a court to rely on Chevron in any particular
| case or expect it to produce readily foreseeable outcomes."
| bigmattystyles wrote:
| Stare decisis only matters when you're in the minority
| HumblyTossed wrote:
| > So agencies will not have any power to actually regulate.
|
| This is the goal. Want to pollute? You will soon when the EPA
| has no teeth.
| TeeMassive wrote:
| This could go the other way. All agencies answer to the
| President. The President could just scrap all regulations or
| just not enforce them.
| intended wrote:
| OH! I remember what this sounds like! This sounds like
| Brexit! People I spoke to said "it could go the other way".
| Not only was it an impossibility, it was a prayer that the
| entire country could get lucky.
|
| To which I raise you the 2008 crisis and the defanging of
| the SEC. Since it looks like people want to neuter weather
| agencies, I believe its going to be a fascinating couple of
| years.
| JumpCrisscross wrote:
| > _All agencies answer to the President_
|
| Not independent agencies [1].
|
| [1] https://en.wikipedia.org/wiki/Independent_agencies_of_t
| he_Un...
| edmundsauto wrote:
| Do you think states will be able to enforce their own
| pollution restrictions? If so, life in blue states will get
| comparatively better - I say this as someone who remembers
| the awful Los Angeles pollution effects of the 1980s.
| cmiles74 wrote:
| Essentially every regulating agency will have to get their
| charter re-written and passed through Congress a second time.
| While that happens, we can expect to see a flood of cases
| decided under a variety of standards in lower courts. I think
| this is going to end up making real mess, it's definitely going
| to slow regulation and enforcement across the board.
| sangnoir wrote:
| > Essentially every regulating agency will have to get their
| charter re-written and passed through Congress a second time
|
| More likely a limited subset of those agencies will survive
| that process due to ongoing efforts of folk whose self-
| confessed long-term goal is the "deconstruction of the
| administrative state". With this ruling, all they have to do
| is do nothing, or obstruct the passing of any law that
| attempts to return to the agencies what the supreme court
| stripped from them.
| anonymouse008 wrote:
| I'm thankful.
|
| Congress skirted their duties for 40 years. This legislative /
| executive codependency then created a tightly connected and
| interdependent governance system, outside the purview of the
| judicial 'checks and balances _. ' This is why things like
| warrantless mass tapping and the Patriot Act became 'good law.'
|
| We are unwinding decades of bad governance. This is a joyous
| occasion, along with the ACJ decision from last session.
|
| _ Before anyone says there were still checks and balances - if
| you feel the need to, you have no idea what Cheveron meant
| godzillabrennus wrote:
| Exactly.
|
| If Congress seeks to regulate air, water, land, and space
| pollution, from American companies, they should appoint
| industry experts who intend to leave public sector jobs for
| lucrative private sector jobs by going to work for the
| companies the laws need to regulate. It's worked great for
| politicians who become lobbyists or prosecutors who go work
| for big law.
|
| It'll work great here too.
| intended wrote:
| Absolutely! We should also make sure that no one in
| agencies is safe. It's only the industries and courts which
| can do the work - only for a short while, you know, till
| congress gets less gridlocked.
|
| Seeing how polarized and partisan things are, it will only
| be a few decades!
|
| Plus seeing how some of the court positions have been, I
| can only think that lobbying is going to become a massive
| business ! So much growth!
| cryptonector wrote:
| _regulatory capture has joined the chat_
| throw0101b wrote:
| > _Congress skirted their duties for 40 years._
|
| Delegation dates back to (at least) the early 1900s:
|
| > _Since 1935, the Court has not struck down a delegation to
| an administrative agency.15 Rather, the Court has approved,
| without deviation, Congress 's ability to delegate power
| under broad standards.16 The Court has upheld, for example,
| delegations to administrative agencies to determine excessive
| profits during wartime,17 to determine unfair and inequitable
| distribution of voting power among securities holders,18 to
| fix fair and equitable commodities prices,19 to determine
| just and reasonable rates,20 and to regulate broadcast
| licensing as the public interest, convenience, or necessity
| require.21_
|
| * https://constitution.findlaw.com/article1/annotation03.html
|
| And from 1825:
|
| > _It will not be contended that Congress can delegate to the
| Courts, or to any other tribunals, powers which are strictly
| and exclusively legislative. [23 U.S. 1, 43] But Congress may
| certainly delegate to others, powers which the legislature
| may rightfully exercise itself._
|
| * https://caselaw.findlaw.com/court/us-supreme-
| court/23/1.html
|
| Delegation is a key component of governance and predates the
| US with Ministers of the Crown, and once the the US was
| formed with Secretaries/Directors/ _etc_ , all of latter
| which are approved by the US Legislative branch through
| (e.g.) Senate-approved appointments.
| cryptonector wrote:
| This is not about delegation. This is about interpretation
| of the limits of delegated power. Under Chevron the
| executive agencies decided that without check. Before
| Chevron and after Raimondo it's the courts that decide. The
| 40 years of Chevron were an aberration.
| throw0101b wrote:
| > _The 40 years of Chevron were an aberration._
|
| The _Chevron_ ruling was codifying what was already
| happening for decades:
|
| > _When a challenge to an agency construction of a
| statutory provision, fairly conceptualized, really
| centers on the wisdom of the agency 's policy, rather
| than whether it is a reasonable choice within a gap left
| open by Congress, the challenge must fail. In such a
| case, federal judges--who have no constituency--have a
| duty to respect legitimate policy choices made by those
| who do. The responsibilities for assessing the wisdom of
| such policy choices and resolving the struggle between
| competing views of the public interest are not judicial
| ones: "Our Constitution vests such responsibilities in
| the political branches."_
|
| * https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._N
| atura...
|
| There is plenty of oversight in interpretation and
| Congress does not need to micromanage interpretation or
| implementation. Delegation as a principle of government
| pre-dates the formation of the US with Ministers of the
| Crown, and was continued post-formation as that's why
| there are Secretarys of Department X/Y/Z or Directors of
| Agency A/B/C.
|
| The People (through their representative in Congress) are
| fine with agencies doing the interpretation. Those
| agencies are headed by an Executive of The People
| (President), and are run by administrator who are People-
| approved (through Congressional hearings and Senate
| approvals). The Legislative branch can dial up and dial
| down the flexibility of interpretation any time they want
| through _Act_ s that change how the department/agency
| involved works, or through altering leadership
| (Secretarys, Directors) of the agencies.
| cryptonector wrote:
| Chevron codified what had been happening since the New
| Deal. Raimondo codifies what has been happening since
| Chevron! Pretty ironic. Each case was a bookend to the
| preceding trend.
| autoexec wrote:
| > Under Chevron the executive agencies decided that
| without check.
|
| That isn't even close to being the truth. Under Chevron
| congress was always free to pass statutes as detailed as
| they want to avoid the kind of ambiguities that would
| even apply to Chevron in the first place, and judges have
| always had the oversight to ensure that an agency's
| interpretation was a "permissible construction of the
| statute".
|
| Those are two literal checks. I have no idea where you
| ever got the idea that executive agencies were "without
| check" but that is just plainly wrong.
|
| _" First, always, is the question whether Congress has
| directly spoken to the precise question at issue. If the
| intent of Congress is clear, that is the end of the
| matter; for the court, as well as the agency, must give
| effect to the unambiguously expressed intent of Congress.
| If, however, the court determines Congress has not
| directly addressed the precise question at issue, the
| court does not simply impose its own construction on the
| statute . . . Rather, if the statute is silent or
| ambiguous with respect to the specific issue, the
| question for the court is whether the agency's answer is
| based on a permissible construction of the statute."_
| ytpete wrote:
| It wasn't really "without check" though, was it? Courts
| could still rule that an agency exceeded its authority,
| it's just that Chevron meant the courts had to give
| deference to the agency's interpretation _if Congress
| left the law ambiguous_ - and if the agency 's
| interpretation was "reasonable."
|
| So for example, if a law grants an agency power to
| regulate pollution emitted into the air, the agency
| already couldn't simply decide on its own that it was
| also able to regulate toxins dumped into rivers. But it
| could decide, if the law was vague on this point, whether
| "emitted into the air" included car exhaust vs. only
| stationary factories, for example.
|
| The principle was that if Congress left a definition or
| meaning ambiguous in the law, it's implied that defining
| its precise meaning is part of the regulatory work they
| wanted the agency to do. Now, instead of that principle,
| the meaning of every ambiguity is open for litigation to
| select a different interpretation if the court finds it
| preferable to the agency's.
| sanktanglia wrote:
| ahh yes our good ole non partisan judicial system will surely
| save us
| autoexec wrote:
| > This is why things like warrantless mass tapping and the
| Patriot Act became 'good law.'...Before anyone says there
| were still checks and balances - if you feel the need to, you
| have no idea what Cheveron meant
|
| It's wild to think that either of things couldn't have been
| possible without Chevron. Congress would have passed anything
| required to allow those to become law.
| ISL wrote:
| With only a few minutes thought on the subject, it seems like
| Congress could explicitly amend the APA to state that the
| interpretation in _Chevron_ is correct.
|
| They might not do that, but from my initial non-expert read of
| today's opinion, the Court only looked to the APA, not the
| Constitution in generating its ruling.
| jameshart wrote:
| Combined with yesterday's ruling on administrative courts, this
| amounts to a massive increase in the role of the federal
| judiciary in the execution of government action.
|
| By 2040 the normal procedure every April will be, rather than
| filing a tax return, filing a suit in federal court disputing
| the right of the IRS to determine whether your income is
| actually 'income'. Eighty federalist society AI lawbots will
| automatically file amicus briefs in support of your case. The
| court clerkputer will autoschedule oral arguments at the first
| available date, around 2175.
| Gormo wrote:
| > Combined with yesterday's ruling on administrative courts,
| this amounts to a massive increase in the role of the federal
| judiciary in the execution of government action.
|
| Sounds great. How we got to the point where executive-branch
| agencies were making rules with the force of law, binding
| upon the public with no judicial oversight, is a mystery to
| me, but it's good to see that the courts are taking their
| responsibilities seriously again, and restoring some measure
| of checks and balances.
| quickthrowman wrote:
| It's not a mystery, Congress delegated their authority to
| the executive branch willingly.
| ytpete wrote:
| There's been plenty of judicial oversight - courts could
| always overturn any regulations or actions by an agency
| that the court decided were not based on a "reasonable"
| interpretation of the law passed by Congress.
| sanktanglia wrote:
| at least well be able to legally bribe our way to the front
| of the line as long as we dont admit its a bribe
| cryptonector wrote:
| You misunderstand the situation. Agencies will still get to
| make regulations, but where there's any legitimate
| question/controversy over their interpretation of the law the
| courts will make the final decision -- final, at least, until
| Congress modifies the law to get whatever effect they had
| wanted (which might not be the one the agency wanted).
| jkic47 wrote:
| Actually, the side effects of allowing unelected Reg agencies
| to make decisions (and the quality of those decisions to date)
| is exactly what is driving their decision.
|
| Congress being parsimonious with laws is probably a good
| thing...read their Stare decisis paragraphs.
|
| Here is the decision for you to read, in case you hadn't yet
| read it before posting.
| https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
| Gormo wrote:
| > I'm impressed that they can so easily dispose of 40 years of
| law making by Congress that assumed that agencies would
| interpret the statutes and make rules for regulating their area
| of authority.
|
| I'm impressed that Congress had the audacity 40 years ago to
| attempt to take judicial authority away from its constitutional
| locus in the courts and re-assign it to executive branch
| agencies, expecting them to be exercise reliable oversight over
| their own authority.
| briantakita wrote:
| > So agencies will not have any power to actually regulate.
|
| And that is a bad thing? If it is, I'll take it. The agencies
| have been ineffective at their stated missions. They have been
| revolving door power grabs since the end of WW2. You know, that
| time when we let all those "former" Nazis into prominent roles
| of government agencies?
|
| It's not like the EPA stopped PFAS from contaminating water all
| over Earth. Or microplastics being embedded in the penile
| tissue of most men...Among the other "miracles of modern
| science". The EPA is too busy going after small landowners
| doing water management.
|
| And if agencies are so wonderful. Why don't we have a
| Department of Peace & a Department of Prosperity for All? So
| the agencies cannot make up their own laws anymore? Cry me a
| PFAS laden river.
| lolinder wrote:
| There's a tendency among certain people on HN to act like the
| conservative justices have no rhyme or reason and are just a bull
| running mindlessly through the china shop breaking precedent at
| random or specifically to hurt specific groups of people.
|
| I'm not a fan of every ruling that they've made, but this should
| have come as absolutely no surprise to anyone who's been paying
| _any_ attention to the arguments that this court has made over
| and over and over again. Their legal and constitutional
| philosophy has been very consistent:
|
| They believe that Congress makes the laws, the Executive branch
| enforces them, and the Judicial branch interprets them. They
| believe that the Executive branch and the Judicial branch have
| been compensating for Congressional failure for too long and they
| have been very clear that they're intent on undoing that and
| rolling the system back to how they believe it should be.
|
| There's an argument to be made that this theory is incorrect
| and/or harmful, but they've been remarkably consistent in
| applying it. Anyone who's been listening to them saw this coming
| years ago.
| rootusrootus wrote:
| It would be somewhat amusing if Congress took the bait and
| wrote some legislation telling the Court to get back in its
| lane. Maybe the majority of justices would actually be okay
| with that.
| kyrra wrote:
| SCOTUS is governed by the constitution. All congress has
| control over is the purse (money paid to the justices),
| number of justices, and appointment of justices. SCOTUS rules
| are set out in Article III. If congress wants to change the
| rules of SCOTUS, they will need to amend the constitution.
|
| Note that congress does have power over all lower federal
| courts, as they were created by congress. SCOTUS is special
| here though.
| colejohnson66 wrote:
| The ability for SCOTUS to rule on _Chevron_ isn 't even in
| the Constitution! _Marbury v. Madison_ was SCOTUS saying
| "we can overturn your executive and legislative choices"
| and no one bothered to stop them.
| trealira wrote:
| > Marbury v. Madison was SCOTUS saying "we can overturn
| your executive and legislative choices" and no bothered
| to stop them.
|
| Are you implying the establishment of judicial review was
| a mistake?
| colejohnson66 wrote:
| Hell no. I'm just taking issue with the claim that SCOTUS
| is just "following the constitution". They are actually
| governed by whatever they say they're governed by. The
| Roberts Court loves to act they're "textualist"
| interpreters, but only when it benefits them. They claim
| _stare decisis_ to avoid overturning precedent, but only
| if said precedent is something they agree with.
| trealira wrote:
| Got it, that makes sense. I think I completely
| misinterpreted the comment due to the context.
| taylodl wrote:
| The _way_ judicial review was established is the mistake.
| LargeWu wrote:
| Congress doesn't amend the constitution unilaterally. The
| best they can do is propose an amendment. Amending the
| constitution today is effectively impossible.
| gpm wrote:
| SCOTUS's appellate jurisdiction is subject to "such
| Exceptions, and under such Regulations as the Congress
| shall make" (Article III section 2 end of second paragraph)
| . Congress clearly and explicitly has the right to govern
| their powers as far as cases like this one go.
| rootusrootus wrote:
| > SCOTUS is governed by the constitution.
|
| It seems unpopular to point out this morning, but the vast
| majority of the power SCOTUS currently exercises is not
| enumerated anywhere in the Constitution. They gave it to
| themselves. Congress is by design the most powerful branch
| of the government and they absolutely can dramatically
| curtail the power of the judiciary if they want to.
|
| I'd advise the folks who are quick with the downvote button
| to go learn more about the Constitution and in particular
| Article III. It is really fascinating and you can go down
| quite the rabbit hole learning about it.
| taylodl wrote:
| With a 2/3 majority, Congress has the power to do just
| about _any damned thing_ they want. They have the power
| to remove any federal judge they want from the bench,
| they have the power to remove any SCOTUS judge they want
| from the bench, they even have the power to determine how
| many justices will serve on SCOTUS. They just need a 2 /3
| majority vote (Majority in the House, 2/3 in the Senate).
|
| The Founders new that the buck had to stop somewhere and
| if mistakes were made, someone had to be able to correct
| them. That entity is Congress. To keep "hanky panky" out
| of it, they demanded a 2/3 majority - wisely realizing if
| you can get 2/3 of Congress to agree on _anything_ , then
| it's probably something extremely important!
| leotravis10 wrote:
| This ruling effectively makes SCOTUS in charge of
| everything, most notably every federal agency really, even
| Congress.
| EricDeb wrote:
| Yes anyone who's paid attention knew this was coming. I'm not
| sure the average American voter understands the consequences of
| the supreme court veering to the right however
| mikeyouse wrote:
| Nobody doubted this is where it would end up - but it's a
| terrible place at complete odds with judicial restraint and
| precedent. The courts are going to be the de facto regulatory
| body in the US going forward, a responsibility they granted
| themselves out of thin air.
| lolinder wrote:
| > a terrible place at complete odds with judicial restraint
|
| On the contrary, they see themselves as them undoing many
| decades' worth of lack of judicial restraint. It's a change
| only because judicial activism has been the norm.
| kasey_junk wrote:
| If nothing else it is further evidence that they themselves
| aren't concerned with slow and moderate change.
|
| This court is only conservative in their political
| positions. In their actions they are extreme.
| lolinder wrote:
| Conservatives don't believe in slow change, they believe
| that the way things were is generally speaking the way
| that things should stay. Rapidly undoing changes that
| were accreted since the "set point" is the entirely
| rational response to those accreted changes if you have
| picked a set point where things were supposedly ideal.
| TylerE wrote:
| None of that is rational. We know the past sucked.
| kasey_junk wrote:
| Sure. But for a long time conservatives decried judicial
| activism. This court has made it obvious that for many
| what they really didn't like was activism that went
| against their politics.
| lolinder wrote:
| No, the court has made it obvious how much they dislike
| judicial activism: so much so that they're willing to
| roll back decades of precedent and likely cause a lot of
| confusion for a very long time in order to undo most of
| the judicial activism from the past.
|
| I'm all for a healthy debate on whether this is good
| policy, but the caricatures of this Court that keep
| showing up on HN aren't helpful for anyone. They lead to
| severe misunderstandings and bad predictions of what the
| Court will do next.
| kasey_junk wrote:
| With this decision they've quite literally moved the
| courts more directly into the executive. It may not be
| the activism of prior courts but it's not a move to limit
| judicial power.
| arcticbull wrote:
| They can see themselves however they want, that doesn't
| make it any less at odds with precedent.
| hibikir wrote:
| Once precedent has already been set over and over again,
| changing said precedent is, in itself, activism. Same as
| with Bruen: One can dress it in restraint all they want,
| but it's a massive divergence in the interpretation of the
| law, in ways that don't even necessarily have serious
| textualist support.
| rayiner wrote:
| I don't understand this viewpoint. Remember, _Chevron_ is
| only about who gets to make a final determination of what a
| Congressional statute means. How could it possibly be anybody
| else's job other than the courts' to make that decision?
|
| A far more accurate framing is that _Chevron_ abdicated the
| courts' duty to be the interpreter of statutes, which is one
| of the most fundamental aspects of being a court.
|
| This does not limit Congress's ability to delegate discretion
| to agencies. It just has to do so explicitly.
| mikeyouse wrote:
| I'd love to see where in the APA you feel that this is
| demanded and why during the interim 80 years of court
| decisions relying on the APA that no other court deemed it
| necessary.
| rayiner wrote:
| The APA can't change the separation of powers between
| what's the court's job and what's the executive's job.
| goodluckchuck wrote:
| Courts have made common law since before the Magna Carta. To
| say they've granted themselves that responsibility out of
| thin air grasps at the root of western civilization as we've
| known it.
| psunavy03 wrote:
| They didn't grant it out of thin air. Go re-read Article III
| of the Constitution.
| yieldcrv wrote:
| thank you, I'm thinking of joining some of the groups that
| construct and bring cases because I'm tired of debating with
| people about this exact thing.
|
| time to just work with the people that understand it, this is
| what we have for the next few decades
| jhp123 wrote:
| who says that conservative justices have no rhyme or reason?
| Everyone knows they work shamelessly to advance their
| conservative political goals.
| rayiner wrote:
| What do you call _Griswold,_ which found new constitutional
| rights in "emanations from penumbras" in the constitutional
| text, if not "shameless?"
|
| By contrast, you're calling it "shameless" for the Court to
| decide that the judicial branch should be the final
| interpreter of statutes, not the executive branch. You're
| literally engaging in Orwellian doublespeak.
| lolinder wrote:
| That's the same kind of argument I'm talking about, though.
| If you just frame it as "to advance their conservative
| political goals" then you fail to fully understand this court
| and will continue to be surprised by what they decide.
|
| This court has more than once ruled in a direction that
| conservatives would not like because the letter of the law
| required them to do so. Those instances just fail to make
| headlines and draw ire on social media.
| jhp123 wrote:
| continue to be surprised? I have not been surprised by this
| court whatsoever
| TylerE wrote:
| Yes, it's quite simple. Whatever ruling helps the
| powerful is the one they make. It's incredibly blatant
| regardless of recent (post 1980s) manufactured from whole
| cloth "originalism", which is in sharp contrast with the
| actual views of the founders who expected the
| constitution to be rapidly and frequently amended to
| account for new factors.
| lolinder wrote:
| > the founders who expected the constitution to be
| rapidly and frequently amended
|
| Do you have any evidence to support this claim? The
| Constitution spells out that any amendment requires first
| an agreement of 2/3s of both houses of Congress _and
| then_ ratification by 3 /4 of the states. Even back when
| there were 13 states I'm having trouble imagining them
| setting it up like that if they were targeting rapid and
| frequent iteration.
|
| If that _was_ their intention they obviously did a very
| bad job setting it up for that.
| TylerE wrote:
| They've been very consistent. They ram through whatever the
| Heritage Foundation (boy, if there was ever a truly evil org
| with a misleading name) tells them to. That's how they got
| selected. Heritage literally gave Trump a list of acceptable
| names, all members.
| jibe wrote:
| You are confusing Heritage and Federalist Society. Federalist
| put together the list of judges that was used for nominations
| in Trump's first term.
| TylerE wrote:
| No I'm not.
|
| https://www.heritage.org/impact/supreme-court-nominee-
| brett-...
| jibe wrote:
| _"There was obviously overlap between the Supreme Court
| list that Heritage put out, which I compiled and which
| was available to all the candidates who were running, and
| the list Donald Trump put out,"_
|
| They really are congratulating themselves on Federalist
| Society's work. Leonard Leo was the one working the list.
| Spooky23 wrote:
| I think you're not reading the room on this. There's a rhyme
| and reason - this court has decided push an agenda in favor of
| a particular type of executive power and a dramatic increase in
| the power of the judiciary.
|
| Judicial review has been the hallmark of judicial power since
| John Jay. Now, in the name of strict construction, the court
| has decreed that Federal courts shall be in the middle of
| routine executive operations. It's absurd and gross.
|
| Unfortunately, the dire predictions made after citizens united
| were spot on. A court of craven ideologues, with at least one
| openly in the pocket of a friendly billionaire, is shifting
| power to an unaccountable judiciary.
|
| It sucks, we're witnessing the slow death of the republic.
| Brybry wrote:
| I think it's fair to say that the conservative justices have
| not been consistent with their professed ideologies.
|
| For a recent example, in SNYDER v. UNITED STATES the dissent
| appears to say, to me, that the majority opinion was neither
| originalist nor textualist in deciding that 18 U. S. C. SS666
| applies only to bribes and not gratuities. [1]
|
| [1] https://www.supremecourt.gov/opinions/23pdf/23-108_8n5a.pdf
| jjk166 wrote:
| That legal philosophy is a dog whistle. The fact is congress
| did write these laws, and they wrote them in this way with the
| understanding that they would be executed by the executive
| branch and interpreted by the courts as they have been for
| generations. Telling congress to go back and rewrite the laws,
| and to specifically rewrite them in a way that is wildly
| impractical, is simply striking laws from the books that the
| courts have no authority to actually strike down.
| psunavy03 wrote:
| I'm not a lawyer, but I worked in a lawyer-adjacent job while
| in the military once and ever since I've followed the law as a
| bit of a hobby. Even with a small bit of training and
| experience, I'm not exaggerating by much when I say that the
| average person has absolutely no idea how the law is
| interpreted or how legal procedure works.
|
| I really believe a large number of people view lawyers as the
| real-world equivalent of wizards or sorcerers from D&D. You say
| the right incantations, and then through either knowledge or
| force of will, something you want to happen happens through the
| force of magic.
|
| In reality, even the six in the majority are still (for the
| most part) interpreting the law, not forcing their policy
| preferences on it. But people who don't understand how the
| whole system works (or that the Justices more often than not
| rule unanimously, if not 7-2 or 8-1) just see the policy
| outcome and either go "I like it, Court good," or "I hate it,
| Court bad and illegitimate."
| twelfthnight wrote:
| The article mentions Clarence Thomas has been courted (even
| bribed?) by the very people paying the lawyers trying to
| overturn Chevron. I think it's naive to believe the judges
| don't have policy preferences that are strongly reflected in
| their rulings... If that wasn't the case the GOP wouldn't
| have blocked nominations from Obama to get their preferred
| judges in.
| psunavy03 wrote:
| For sure, the President and Congress try to get Justices
| who agree with them. But you only have to go back to
| Anthony Kennedy and David Souter to realize that once
| they're on the Court, the Justices don't seem to ever feel
| beholden to the party or President that appointed them.
| George H. W. Bush appointed Souter, who ended up as one of
| the most reliably liberal Justices on the Court. Trump has
| been consistently smacked down by the very Justices he
| appointed.
|
| And as sketchy as some of Thomas's dealings look, he's one
| of nine. Assuming for the sake of argument that he IS
| bought and paid for, you still need at least four other
| people to sign on to anything he says for it to be a
| ruling.
| relaxing wrote:
| "No more Souters" has been the explicit rallying cry of
| the Right ever since.
|
| You also have to look at who controlled the Senate in
| those years.
| TMWNN wrote:
| >I really believe a large number of people view lawyers as
| the real-world equivalent of wizards or sorcerers from D&D.
| You say the right incantations, and then through either
| knowledge or force of will, something you want to happen
| happens through the force of magic.
|
| A classic example is how many people call any law they don't
| like "unconstitutonal". The logical corollary is that any law
| they like must be "constitutional".
| Simplicitas wrote:
| In an ideal world, maybe. In the US, where business mostly
| already owns government, this decision will further erode the
| little control citizens have over them.
| eyelidlessness wrote:
| There's also a tendency, among those persuaded by particular
| philosophies of governance, to ignore decades of electoral
| strategy which has married control over the courts with
| political priorities where these harms are exactly the desired
| outcomes. There's probably a case to be made that the model of
| governance and the specific political harms are more
| intrinsically linked than mere strategy. But putting that
| aside... conservatives writ large are all too eager to abandon
| that model of governance when it doesn't have the desired
| political effect. And it's easy enough to imagine the
| conservative movement losing love for even this highly
| favorable court if certain high profile cases don't go the way
| they expect.
| efsavage wrote:
| Predictable, certainly. Consistent, not so much. They seem to
| start with a decision and work their way backwards through the
| reasoning, cherrypicking from a versatile and whimsical set of
| "principles".
|
| Originalism not cutting it, try textualism, conservatism, or
| maybe even a little liberalism if you want to spice things up!
| If none of those are really doing the trick, there's always the
| "tradition" sledgehammer that you can use for anything you
| want.
| alex_young wrote:
| Isn't this really an argument about delegating authority?
|
| Chevron deference is about congress creating administrative
| agencies and delegating rule making to those agencies.
|
| There isn't some separation of powers issue here, the idea is
| that where congress does legislate and an agency makes a
| reasonable interpretation of a nuance implicit in the law,
| these rules carry the weight of the law.
|
| For instance, congress mandates that the EPA enforce clean
| water standards, and the EPA sets parts per million for various
| dangerous substances. Would it make sense for congress to have
| to pass new laws each time a new chemical is introduced to our
| environment?
| relaxing wrote:
| It makes sense if you want to be able to dump new chemicals
| in the environment and count on your "small government"
| representatives to do nothing about it.
| ndriscoll wrote:
| In a sane world, if Congress were okay delegating their
| responsibility, presumably they'd be okay rubber stamping
| whatever agencies sent their way (with the advantage that
| they could more thoroughly review something controversial).
| If they're not okay rubber stamping, then I suppose they
| weren't actually okay with delegating their responsibility.
|
| Like surely the EPA could send them a 1 sentence bill saying
| "amend section H paragraph III to add chemical X at 30 ppb",
| and they could have it passed in a day if they have that
| trust.
| doublerabbit wrote:
| So for anyone not American and has no idea what this is about,
| here's a ChatGPT definition using teddy bears. As far as I knew
| was that Chevron was a company and road markings..
|
| Imagine a village called Bearville, where all the teddy bears
| live and work together. In Bearville, there's a Bear Council
| (like the government) that makes the rules and laws for the
| village. There's also a special group of teddy bears called the
| Honey Helpers (like a federal agency), who are experts in honey-
| making and are responsible for ensuring everyone follows the
| honey-related rules. Finally, there's the Bear Court (like the
| judiciary), which resolves disputes and interprets the rules.
| Chevron Deference in Bearville How It Works Now (Chevron
| Deference)
|
| The Honey Law:
|
| The Bear Council passes a law that says, "All honey jars must be
| properly sealed to keep the honey fresh." However, the law
| doesn't specify what "properly sealed" means.
|
| Honey Helpers' Role:
|
| The Honey Helpers interpret the law and decide that "properly
| sealed" means each jar should have a special bee-proof lid. They
| are the honey experts, so they know what's best to keep honey
| fresh.
|
| Bear Court's Approach:
|
| Step One: The Bear Court first checks if the Honey Law is clear
| about what "properly sealed" means. Since it's not clear, they
| move to the next step.
|
| Step Two: The Bear Court then asks if the Honey Helpers'
| interpretation is reasonable. Since a bee-proof lid sounds
| reasonable, the Bear Court agrees with the Honey Helpers and lets
| them enforce this rule.
|
| Village Life:
|
| The teddy bears follow the Honey Helpers' rules, and the village
| enjoys fresh honey without too many arguments.
|
| What Happens If Bear Court Overrules Chevron Deference Without
| Chevron Deference
|
| Honey Helpers Lose Authority:
|
| The Honey Helpers no longer have the final say on what "properly
| sealed" means. They can suggest interpretations, but they don't
| automatically get to decide.
|
| Bear Court Steps In:
|
| The Bear Court now independently decides what "properly sealed"
| should mean. If a teddy bear doesn't like the Honey Helpers' bee-
| proof lid idea, they can take the matter to Bear Court, which
| will make its own decision rather than deferring to the Honey
| Helpers.
|
| Increased Disagreements:
|
| Different teddy bears might have different ideas about sealing
| honey jars. Some might prefer sticky wax, while others might want
| fancy lids. Without a clear, unified rule from the Honey Helpers,
| there might be more disputes and uncertainty about what's
| allowed.
|
| More Work for Bear Court:
|
| The Bear Court would have to spend more time resolving these
| disputes and interpreting the honey law on a case-by-case basis,
| which could slow things down and create inconsistencies.
|
| Village Confusion:
|
| The teddy bears might become confused about the rules, leading to
| some jars not being sealed properly and the honey not staying
| fresh.
|
| Impact on Bearville
|
| Less Consistency: Without Chevron deference, each Bear Court
| decision might vary, leading to different interpretations and
| rules in different parts of Bearville.
|
| More Court Cases: More teddy bears might take their honey-sealing
| disputes to the Bear Court, increasing the court's workload and
| creating delays.
|
| Less Expert Guidance: The Honey Helpers, who are experts in
| honey, would have less authority to set standards, which might
| lead to less effective rules.
|
| Conclusion
|
| In teddy bear terms, Chevron deference allows the Honey Helpers
| to use their expertise to make rules, and the Bear Court supports
| them as long as their rules are reasonable. If Chevron deference
| is overruled, the Bear Court takes a much more active role in
| making these decisions, which could lead to more confusion and
| disputes in Bearville. The teddy bears would have to rely more on
| the court and less on the experts for guidance on honey-related
| matters.
| dang wrote:
| Please don't post generated comments.
| jimbob45 wrote:
| Is there a reason you haven't added that to the FAQ yet? I
| don't know how that guy could have known not to use generated
| comments unless there was a sticky I missed.
| dang wrote:
| More likely that would go in
| https://news.ycombinator.com/newsguidelines.html although
| the line between that and
| https://news.ycombinator.com/newsfaq.html is a bit blurry.
|
| There are lots of established practices or conventions here
| that haven't been elevated to that level because we don't
| want to make those lists too long. At a certain point it
| would start to feel bureaucratic and that would be bad;
| also, the longer they are the less people will read them.
| Arguably one can derive 'no generated comments' from what's
| already there though I agree it's not entirely obvious.
|
| The community has been doing a pretty good job of managing
| this issue though, so I'm not sure it needs
| officialization.
| lolinder wrote:
| There's a tendency among certain people on HN to act like the
| conservative justices have no rhyme or reason and are just a bull
| running mindlessly through the china shop breaking precedent at
| random or specifically to hurt specific groups of people.
|
| I'm not a fan of every ruling that they've made, but this should
| have come as absolutely no surprise to anyone who's been paying
| any attention to the arguments that this court has made over and
| over and over again. Their legal and constitutional philosophy
| has been very consistent:
|
| They believe that Congress makes the laws, the Executive branch
| enforces them, and the Judicial branch interprets them. They
| believe that the Executive branch and the Judicial branch have
| been compensating for Congressional failure for too long and they
| have been very clear that they're intent on undoing that and
| rolling the system back to how they believe it should be.
|
| There's an argument to be made that this theory is incorrect
| and/or harmful, but they've been remarkably consistent in
| applying it. Anyone who's been listening to them saw this coming
| years ago.
| epicureanideal wrote:
| Also, if the commenters here READ the full decision, the court
| explains the history and its reasoning better than any of us
| can do here.
|
| That's a common feature of Supreme Court decisions, and I find
| many Supreme Court decisions to be very interesting reading,
| including those from past decades.
| throw0101c wrote:
| > _Also, if the commenters here READ the full decision, the
| court explains the history and its reasoning better than any
| of us can do here._
|
| Sometimes the reasoning is specious and a fig leaf (e.g.,
| _Heller_ ); have no idea how good it is here.
| vdqtp3 wrote:
| If you are stating that Heller is specious and a fig leaf,
| you are arguing from a position of bad faith. You may
| disagree with the constitutional basis for the decision and
| wish the second amendment to be abolished, but the decision
| was well stated and solid.
| throw0101b wrote:
| > _You may disagree with the constitutional basis for the
| decision and wish the second amendment to be abolished,
| but the decision was well stated and solid._
|
| The decision, as written by the late Scalia, to create an
| individual right bears no resemblance to any historical
| or legal precedent. Acting as amateur linguist and
| etymologist, it is ironic that Scalia, a so-called
| Originalist, also ignores the original meaning of the
| terms in the amendment.
|
| This is independent of whether 2A is currently useful, or
| --even more importantly--whether it was even a
| good/effective idea in the first place.
| Spivak wrote:
| Yes but people who have been listening have also been dreading
| this coming for years. The fact that they're consistently
| knocking over shelves doesn't make it better.
|
| We've known that Roe was on the chopping block, but it doesn't
| make it good law even if it's consistent with the conservative
| justices' goals.
| lolinder wrote:
| Like I said, there are legitimate arguments to be made
| against this change, but a lot of people are quick to assume
| that the Court is out to get them.
|
| The cases that people would approve of if they heard about
| them get ignored by social media, instead focusing
| exclusively on the cases that undo some rights that had been
| established by judicial or executive precedent. So we end up
| in a place where a lot of commenters are under the false
| impression that the Court just hates ___ people, rather than
| seeing the whole picture of the court systematically rolling
| back judicial activist rulings and executive rule makings.
| jauntywundrkind wrote:
| The court seems intent on allowing judge shopping
| conservatives to gut any even mildly inconvenient law.
|
| Going back to a "balance" where judges interpret law and no
| one else creates massive ambiguity across courts & greatly
| degrades any ability to govern. That seems to be the
| fantasy world that some parts of America desire. And that
| this court is working towards, hard as it can.
|
| It interprets that only the court gets to allow or deny
| diffxx wrote:
| I do not understand how you can not see this is an activist
| court. They have by fiat invented new judicial principles
| out of thin air: "history and tradition" and "major
| questions doctrine" come to mind. And they apply these
| arbitrary principles in a heavy handed, inconsistent and
| simultaneously predictable way while sanctimoniously acting
| as though we can't see what they are doing.
| GenerWork wrote:
| >Yes but people who have been listening have also been
| dreading this coming for years.
|
| Why are they dreading this? I find it strange how so many
| people are upset that the Supreme Court is forcing Congress
| to do its job, which is pass laws.
| saint_fiasco wrote:
| > forcing Congress to do its job
|
| > Why are they dreading this?
|
| You answered your own question there. Congress should do
| its job, but as a matter of fact it is not doing its job
| and it is not going to do its job anytime soon.
|
| The Court might be technically, legally, philosophically
| correct in removing the inelegant hacks that the previous
| courts set up to route around the fact that Congress does
| not do its job. But in the meantime, Congress is still not
| doing its job.
| GenerWork wrote:
| I'm talking about the "people who have been listening to
| the court and dreading this". Who are these listeners who
| remain undefined? Are they congressmembers? Are they
| pundits?
| tankenmate wrote:
| Mainly corporate lawyers, legal scholars (mainly academic
| institutions), and public interest lawyers. The people in
| the trenches.
| saint_fiasco wrote:
| The obvious example is pro-choice people who wish that
| Congress would pass a law that favors their position, and
| have been forced to rely on weird Supreme Court rulings
| by activist judges instead.
|
| You can argue that the pro-choice people should just
| accept that Congress does not decide in their favor, that
| this is a democracy and in a democracy sometimes you
| lose. But it's not like Congress has decided in favor of
| their opponents either. They just decide nothing. If
| Congress actually decided one way or the other then at
| least people would know where they stand and could stop
| feeling anxious about it.
| HDThoreaun wrote:
| Me. I like regulatory agencies to be able to regulate,
| and unless congress figures out it's shit quickly there
| will be big problems.
| throwup238 wrote:
| That's a nice catch 22 they've got there. Congress has been
| passing laws for decades under the assumption that the
| Chevron case is settled precedent. Now they're getting rid
| of it because... Congress needed to instead pass laws
| completely ignoring the courts ruling?
| tankenmate wrote:
| But the effect of this ruling will mean that Congress will
| have to pass an order of magnitude more laws; and there is
| only so much time for debates (which are required in order
| to pass laws). Or, executive bodies won't be able to do
| what is required to keep country wide productivity up.
|
| This is the equivalent of requiring a stand up meeting for
| every commit to a repo; it's plainly obvious that over time
| it will kill USA's productivity. This is judicial drag on
| the economy.
| mike_hearn wrote:
| It's worth noting that other comparable countries don't
| delegate law-making power to the executive in the same
| way the US does. For example in the UK only Parliament
| may make laws, the civil service can draft it but that's
| the limit (post-EU-exit that is, the EU is something
| else).
|
| There is a concept called a statutory instrument in which
| the process is optimized by allowing changes to be made
| to law either by "laying them before" Parliament, in
| which case only approval or rejection is possible, not
| amendment. Annulling new regulations in this manner is
| extremely rare however. Or in some cases it's allowed for
| the responsible Minister or committee of MPs to make the
| changes directly, which in practice means they sign off
| on changes proposed by the civil service. This is usually
| only the case for very minor changes like updating
| thresholds, shutting down roads for construction work
| etc.
|
| Despite the inability of the civil service to directly
| change the law, the UK is not suffering from a deficit of
| regulations. So there's no reason in principle it should
| harm productivity, unless you mean, productivity of the
| government itself.
| enragedcacti wrote:
| It seems like an important distinction that unlike the US
| their government intentionally collapses if the
| legislature no longer supports the executive. Given two
| separate legislatures, the filibuster, the presidential
| veto , fixed terms, etc. it might just make sense for the
| US government to work a little differently.
| jellicle wrote:
| As an FYI: Parliamentary governments routinely delegate
| regulation-making power to the particular Ministries, in
| exactly the same way as the USA Congress delegates it to
| executive agencies.
|
| https://www.parliament.uk/about/how/laws/secondary-
| legislati...
| dctoedt wrote:
| > _I find it strange how so many people are upset that the
| Supreme Court is forcing Congress to do its job, which is
| pass laws._
|
| That's the Assume a Can Opener fallacy.
|
| https://en.wikipedia.org/wiki/Assume_a_can_opener
| esoterica wrote:
| Congress is broken and structurally incapable of passing
| laws under this level of political polarization because
| there are too many veto points (bicameral legislature, the
| filibuster, the presidential veto) for any law to get
| passed even if it's supported by the majority of
| legislators and the majority of voters.
| quickthrowman wrote:
| > Why are they dreading this? I find it strange how so many
| people are upset that the Supreme Court is forcing Congress
| to do its job, which is pass laws.
|
| Congress is extremely dysfunctional and won't be able to
| keep up. Corporations are going to exploit the lag in rule
| making by fucking over individuals like you and me. That's
| why I'm concerned.
| torstenvl wrote:
| Vesting unreviewable legislative authority in unelected
| bureaucrats _specifically_ chosen because of their long and
| close ties to the industries they are meant to regulate is
| anathema to every tenet of democracy. Good riddance.
| esoterica wrote:
| Removing Chevron deference moves authority from the
| administrative agencies to the courts, who are not only
| also unelected bureaucrats, they are more insulated from
| democratic forces since they have lifetime appointments.
| Agency heads are political appointments and change with
| every president.
| paulmd wrote:
| Yeah, grandparent is being infantilizing/patronizing
| throw0101c wrote:
| > _They believe that Congress makes the laws, the Executive
| branch enforces them, and the Judicial branch interprets them.
| They believe that the Executive branch and the Judicial branch
| have been compensating for Congressional failure for too long
| and they have been very clear that they 're intent on undoing
| that and rolling the system back to how they believe it should
| be._
|
| If Congress wants to delegate authority for micro-managing
| things to agencies, why shouldn't they be allowed to do so?
|
| > _Kagan cited as one example a hypothetical bill to regulate
| artificial intelligence. Congress, she said, "knows there are
| going to be gaps because Congress can hardly see a week in the
| future." So it would want people "who actually know about AI
| and are accountable to the political process to make decisions"
| about artificial intelligence. Courts, she emphasized, "don't
| even know what the questions are about AI," much less the
| answers._
|
| * https://www.scotusblog.com/2024/01/supreme-court-likely-
| to-d...
|
| If Congress doesn't like where an Executive agency is headed
| they can further change the _Act_ governing it to clarify
| things. The guardrails can be set that way, and with-in them
| agencies--generally subject matter experts--can write and
| refine regulations as they are needed.
|
| The Executive agencies and departments _are created by_
| Congress. US regulatory agencies have authority because it was
| _given to them_ by The People (through their elected
| representatives).
|
| The Judiciary seems to be _limiting the Legislative_ here. Is
| there anything in the US Constitution that says Congress cannot
| delegate?
|
| * https://constitution.findlaw.com/article1/annotation03.html
| saint_fiasco wrote:
| Congress can still delegate the known unknowns. They can say
| "because we are not experts in this subject, we delegate to
| agency X the power to decide whether this should be done in X
| or Y way"
|
| What they cannot do anymore is delegate unknown unknowns.
| They cannot leave X and Y unspecified, the executive agencies
| cannot do things in Z way that Congress didn't enumerate, or
| a and b way that Congress didn't even conceive.
| p_j_w wrote:
| >What they cannot do anymore is delegate unknown unknowns.
|
| And that's absurd. Congress should have the ability to do
| this. If they don't like what an agency is doing, they're
| perfectly able to amend the law.
| salawat wrote:
| >If Congress wants to delegate authority for micro-managing
| things to agencies, why shouldn't they be allowed to do so?
|
| Because the Constitution defined the Legislative branch as
| the entry point for new laws. _Not the Executive_. Period.
| The Legislative branch, with the Power of the Purse, is more
| than capable of establishing the requisite in-house research
| apparata to allow the Branch to become quickly read up and
| fluent on anything. That was the purpose of the Library of
| Congress, and the Office of Technology Assessment. OTA, in
| particular, was dismantled by Congress because "why should
| we have this when all the lobbyists are so well informed
| anyway". I.e. an act of a group of politicians that should
| damn well know better than to blindly believe everything they
| are told/ignore everything they are specifically not told by
| special interests without corroborating reality first through
| the exercise of legislative subpoenas.
|
| Congress put it's eyes out in a desperate bid to make it that
| much easier to be held unaccountable for doing their jobs,
| necessitating delegation to the Executive, which was far
| easier to manage dealing with.
|
| >The Executive agencies and departments are created by
| Congress. US regulatory agencies have authority because it
| was given to them by The People (through their elected
| representatives).
|
| Yep. Those Agencies, however, should not be making corpuses
| of law (Administrative law; but I'll be charitable for
| argument sake, and grant that Administrative law is a
| necessary evil).
|
| Notwithstanding the above, the Judiciary damn well shouldn't
| be ignoring grievance redressing relevant to any
| Administrative law. The Executive cannot be allowed to be all
| rolled up in one lawmaker, enforcer, and interpreter of last
| resort. It completely undermines the principle of seperation
| of powers.
|
| Does that make life harder? Hell yes. Governing ain't
| supposed to be easy. It's high demand, high overhead, and
| wide blast radius at the Federal level. The fact the
| Legislature has gotten so bad at legislating should be a
| point of shame on us all.
| throw0101b wrote:
| > _Because the Constitution defined the Legislative branch
| as the entry point for new laws._
|
| And (some) delegation has been found to be Constitutional
| for (at least) a century:
|
| > _Since 1935, the Court has not struck down a delegation
| to an administrative agency.15 Rather, the Court has
| approved, without deviation, Congress 's ability to
| delegate power under broad standards.16 The Court has
| upheld, for example, delegations to administrative agencies
| to determine excessive profits during wartime,17 to
| determine unfair and inequitable distribution of voting
| power among securities holders,18 to fix fair and equitable
| commodities prices,19 to determine just and reasonable
| rates,20 and to regulate broadcast licensing as the public
| interest, convenience, or necessity require.21_
|
| *
| https://constitution.findlaw.com/article1/annotation03.html
|
| From the original, unanimous, _Chevron_ ruling:
|
| > _When a challenge to an agency construction of a
| statutory provision, fairly conceptualized, really centers
| on the wisdom of the agency 's policy, rather than whether
| it is a reasonable choice within a gap left open by
| Congress, the challenge must fail. In such a case, federal
| judges--who have no constituency--have a duty to respect
| legitimate policy choices made by those who do. The
| responsibilities for assessing the wisdom of such policy
| choices and resolving the struggle between competing views
| of the public interest are not judicial ones: "Our
| Constitution vests such responsibilities in the political
| branches."_
|
| * https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Nat
| ura....
|
| It is the current reverse that is strange ( _Chevron_ was
| simply a codification of what was already happening for
| decades).
| eightysixfour wrote:
| > more than capable of establishing the requisite in-house
| research apparata to allow the Branch to become quickly
| read up and fluent on anything.
|
| Not only can they not "become fluent in anything," it
| shifts more power to lobbyists and industry where expertise
| exists that can draft the language they want with the
| loopholes they want. The scale of federal governance is
| literally impossible without the looseness of intent
| interpretation that can be challenged and validated by the
| court.
|
| You may as well say we can replace the regulatory
| bureaucracies with expert systems, because we should be
| able to predict every possible outcome beforehand and just
| make a giant if/then out of it.
| throw0101c wrote:
| > _The scale of federal governance is literally
| impossible_ [...]
|
| I think that's the whole point of the Federalist
| Society's libertarian, small government (except for the
| military) philosophy.
|
| * https://en.wikipedia.org/wiki/Federalist_Society#Role_i
| n_pre...
| salawat wrote:
| >Not only can they not "become fluent in anything," it
| shifts more power to lobbyists and industry where
| expertise exists that can draft the language they want
| with the loopholes they want.
|
| The Office of Technology Assessment was dismantled
| specifically because it was making it _too hard for
| lobbyists to transparently pull the wool over lawmaker 's
| eyes_. Suddenly there was paper trail that the
| Legislature *knew, or should have known, that lobbyists
| were feeding Congress a line. OTA's entire job was to
| issue legislative subpoena's to collect information
| relative to legislative business.
|
| Congress can literally make itself the single most pre-
| eminent employer of research staff on the planet,
| overnight. Do not sit here, and tell me with a straight
| face, that that is infeasible. The issue is will to
| govern, and reluctance by moneyed interests to start
| being questioned back by motivated, competent answer
| seekers in D.C. they can't legally withhold info from
| without committing the equivalent of a felony.
|
| >The scale of federal governance is literally impossible
| without the looseness of intent interpretation that can
| be challenged and validated by the court.
|
| That (challenging in Court) couldn't happen with Chevron
| deference in practice. Now it can. Good riddance.
|
| Federal governance is far from impossible to do; and I'd
| like to know your definition of Federal governance. If
| it's "I want to pass a controversial law once to get it
| to stick in all jurisdictions, damn the consequences";
| then not only do your complaints fall on unsympathetic
| ears, but I'd say that's the system working as designed,
| and Chevron was a step to breaking it worse.
|
| If on the other hand, Federal Governance is "the
| judicious elevation to the highest level of
| government/enforcement only those tasks that need to be
| there irrespective of any individual subjurisdictions,
| all subject to the constraints of who does what aspect of
| the job as set forth in the Constitution of the United
| States"; then we're cool. I feel ya'. Them's the breaks
| though. And I say that as an ex-civil servant.
|
| Government work is hard, thankless, frustrating, and the
| most dangerous thing to get fast and loose with.
| HDThoreaun wrote:
| Congress can delegate authority to the agencies. This ruling
| just says that they have to explicitly do so instead of
| chevrons ruling that agencies may interpret ambiguous
| statutes however they like.
| doctoboggan wrote:
| I understand that one reason for the continuing of Chevron
| deference is that Congress has been writing laws for the past 4
| decades assuming that the agencies can iron out the
| ambiguities.
|
| I wonder if going forward congress can just try to have those
| agencies iron out the ambiguities before passing the law? Or is
| the idea that its impossible to anticipate all possible edge
| cases and congress wants to let the agency iron out future
| issue?
| dctoedt wrote:
| > _Or is the idea that its impossible to anticipate all
| possible edge cases and congress wants to let the agency iron
| out future issue?_
|
| This Plus, it's often a case of Congress kicking the can down
| the road: Enough votes in Congress might agree that
| _something_ needs to be done, but they can 't come up with
| agreement on the details -- often because of conflicting
| special-interest (read: donor) lobbying about those details.
| So the legislators say, in effect, "OK, let's get 'a bill'
| passed _[a minimum viable product, if you will]_ and let the
| agencies deal with it. Then later, if a major problem comes
| up with a particular agency ruling, we can revisit the issue
| then. "
| Ancapistani wrote:
| > Congress has been writing laws for the past 4 decades
| assuming that the agencies can iron out the ambiguities
|
| My understanding is that the big problem is that this
| expectation is implicit.
|
| Congress isn't granting agencies the authority to make
| determinations as to what falls into a category, for
| instance. Instead, they're creating a category without
| further elaboration.
|
| Compare that to 18 USC 921(a)(4)(C), which says in part:
| The term "destructive device" shall not include any device
| which is neither designed nor redesigned for use as a weapon;
| any device, although originally designed for use as a weapon,
| which is redesigned for use as a signaling, pyrotechnic, line
| throwing, safety, or similar device; surplus ordnance sold,
| loaned, or given by the Secretary of the Army pursuant to the
| provisions of section 7684(2), 7685, or 7686 of title 10; or
| any other device which the Attorney General finds is not
| likely to be used as a weapon, is an antique, or is a rifle
| which the owner intends to use solely for sporting,
| recreational or cultural purposes.
|
| This explicitly established a process through which the
| Attorney General may exclude weapons from the "destructive
| device" category at their discretion.
|
| My understanding is that this would _not_ be impacted by
| overturning Chevron, as the process was established by
| Congress explicitly. Hypothetically, if that provision did
| not exist and the AG unilaterally decided that a weapon that
| was otherwise included in the category should not be, then
| that would be an example of executive rulemaking within the
| bounds of Chevron.
| notabee wrote:
| Unless the way elections are handled changes, such as doing
| anything that selects for expertise instead of partisan
| hackery, all this is going to do is accelerate the gridlock,
| corruption, and dysfunction. It just does not logically follow
| that putting more pressure on the legislative branch to be
| functional is going to work when its functionality or lack
| thereof is based largely on a very gerrymandered population
| being blasted non-stop by a completely co-opted, corrupt media.
| When the corruption and control is so thoroughly embedded
| already, the difference between "unelected official" and
| "party-and-special-interest-approved elected official" becomes
| a silly fig leaf of a difference.
| thethimble wrote:
| On the other hand, enabling the judicial and executive branch
| to overcompensate for this disfunction also seems problematic
| - particularly as the former groups aren't elected (except
| for the President, of course).
| HDThoreaun wrote:
| I think everyone agrees congress being dysfunctional is
| problematic. The question is if it's better for the other
| other branches to pick up the slack or if we should just
| let the government do nothing
| mike_hearn wrote:
| Institutionally-declared experts are not exactly famous for
| their lack of partisan hackery, especially not in recent
| years.
|
| _> It just does not logically follow that putting more
| pressure on the legislative branch to be functional is going
| to work_
|
| You're talking like this is a political tactic or strategy
| used by the Supreme Court to achieve a specific outcome
| (which might "work" or "not work"), but it's not. Justices
| aren't meant to make such plans. They are supposed to do
| their job. If Congress does or doesn't do theirs, that isn't
| by itself the Court's problem nor something to which they
| should be the solution.
|
| But it's also worth remembering that what "works" means
| varies a lot depending on perspective. There is plenty of
| stuff that is bipartisan in Congress and which they get done
| fairly quietly. Additionally, to the school of thought known
| as libertarianism, Congress _not_ doing things is the
| desirable outcome and thus a gridlocked Congress is in fact
| the system working as designed, in the sense that it is being
| limited by the degree of agreement amongst voters on what it
| should do.
| adamc wrote:
| I think few who have watched the court think it is anything
| but a strategy used to work toward specific outcomes.
| mike_hearn wrote:
| Hmm well I'm a foreigner so am not really affected by
| Supreme Court judgements, and I would say that this
| particular court seems to be doing an unusually good job
| of just following the law as written regardless of
| outcome. Certainly it seems true when compared to the
| supreme court equivalents in most other countries, which
| are largely a joke.
|
| As an example, the Supreme Court made another judgement
| this week that has pissed off lots of conservatives: it
| dismissed a case about social media companies banning
| political speech about COVID at the behest of the
| government, on the basis of lack of standing. This was
| widely seen as a blow against free speech. If you read
| the judgement though the problem was simply that the
| people being censored hadn't shown clearly that it was
| the government doing the censoring vs the social network
| executives, and were relying on a sort of ambient
| argument that the government was leaning on the companies
| in ways that weren't always clear, and so there was a
| First Amendment violation at one-hop-removed.
|
| The court rejected this reasoning, saying they could only
| rule on cases where the people doing the appeal could
| show they had been directly harmed by the government, so
| they weren't even going to consider the rest of the case.
| If the Supreme Court were a bunch of conservative
| activists they wouldn't have done that. They'd have
| accepted the indirect censorship argument, accepted that
| the case had standing and then ruled against the federal
| agencies. And in fact the conservatives I saw talking
| about it were raging against "technical" judgements that
| could only be the result of pro-regime bias etc etc. But
| the judgement seemed logically sound to me. So the idea
| that the current court is packed with judges abusing
| process to get specific ideological outcomes looks very
| wrong.
|
| I never paid attention to Supreme Court rulings before a
| year or so ago but suddenly it seems like they're all
| over HN. So this is the first time I've read them. The
| thing that's really striking is how stupidly obvious all
| these cases seem to be and how weak the original legal
| reasoning being overturned was. You can understand the
| argument within a few pages of reading, usually. Like
| when Roe v Wade was struck down, all I knew about it was
| that it was related to legalizing abortion. So naturally
| I figured it was something to do with abortion law. When
| it was struck down, I learned for the first time that it
| actually relied on some convoluted backflips to do with
| privacy law that had nothing to do with abortion,
| moreover it seemed almost everyone in the legal
| profession had always known it was logically dubious and
| the product of an activist court, etc. It was pretty
| surprising that such a judgement had survived so long,
| honestly.
|
| Likewise for this judgement, what they're saying is
| there's not only the Constitution but also a specific act
| of Congress which both state that when statutes are
| ambiguous the courts decide on the correct
| interpretation. In the original Chevron judgement those
| laws appear to have been ignored and the courts started
| letting the executive branch decide what ambiguous law
| meant. That then became just the way things are done, but
| the law had never actually been changed to allow that.
| Once again this judgement seems .... kinda obvious? It's
| not exactly a complex feat of legal reasoning. The laws
| says the courts resolve ambiguity, they weren't doing it,
| now they've been told to do it. End of judgement.
|
| It's quite fascinating how many commenters just assume
| that if there's a decision they don't like from a court
| it must be due to bias and corruption. Makes me wonder
| what they think when there's a decision they do like.
| travisb wrote:
| It's part of the polarization of politics over the past
| few decades where the ends justify the means and the
| sooner the better. People have given up on understanding
| underlying principles, let alone believing they are
| necessary for good long-term outcomes. One can even argue
| many have given up on the long-term entirely in favour of
| instant gratification of their demands for societal
| change .
|
| You can see that even in this very discussion where a
| substantial fraction of the comments are making claims
| that this ruling will prevent regulation entirely -- a
| claim entirely unsupported by the principles in question.
| snapplebobapple wrote:
| i am sympathetic to desire to change how elections are
| handled (universal suffrage is a stupid idea without
| universal risk/ skin in the game, we need a way to make
| voters universally and roughly equal uncomfortable eith poor
| fiscal managment so they feel the pian when they vote
| thwmselves more stuff without also voting in a payment
| method) but its not happening.
|
| i also think you are mistaking long term corruption and chaos
| with a normal process in big party system where every several
| decades the big voting blocks move around and thatparalyzes
| the politicians until they are sure who their voting blocks
| are. onve the voting blocks finishmigrating and sort out
| dominance per party things will go back more towards
| historical functioninglevels
| goostavos wrote:
| >make voters universally and roughly equal uncomfortable
| eith poor fiscal managment so they feel the pian when they
| vote thwmselves more stuff without also voting in a payment
| method)
|
| What does that look like in your mind?
| rustcleaner wrote:
| My idea is to apportion costs to the voter's choices (you
| want lobster, you pay for lobster), and/or hamstring the
| ability to move and immediately get access to voting in
| the new place's elections.
| snapplebobapple wrote:
| you can read in my other response but the short answer
| is: post a bond equal to X weeks salary to vote, bond is
| held for duration of those elected people's time and if
| they run a deficit the first hit comes off the posted
| bond before the country starts taking on debt. If you
| want to vote again next time post more money to top
| yourself up.
| rustcleaner wrote:
| Maybe eliminate secret ballots to do an "if you vote for
| it/him, you pay for its/his costs" sort of system?
|
| Or keep ballots secret and apportion taxes to districts or
| counties which vote for increased costs, and have it be
| sticky on move for 5-10 years. Also prevent new-comers from
| voting in local elections for a period of up to 5-10 years
| (while retaining the vote in the previous jurisdiction).
| All these things add costs to locust electorate and will
| slow down the californication of the south and midwest as
| californians continue to flee in droves. It's already
| causing political havoc in various locales.
|
| Do not vote for garbage politics thus destroying your home,
| then move to a nice place with opposite politics just to
| vote your garbage again. You act like chauvinist locust
| when you do that, moving into new political ecosystems to
| destroy them into your 'ideal' vision.
|
| If you move from blue to red state because your blue state
| went to hell, wait 5 or more years to register to vote. I
| only wish this was law so places like AZ can stay nice with
| lower crime, castle doctrine, and presumptive consealed
| carry.
|
| Now to batton down my hatches, I sense a downvote typhoon
| in the air...
| DowsingSpoon wrote:
| >universal suffrage is a stupid idea without universal
| risk/ skin in the game
|
| Can you clarify this statement? I don't understand what you
| mean.
| snapplebobapple wrote:
| Right now almost everyone gets to vote ( basically if you
| are a citizen who is over 18 you get to vote in most
| democracies) but when you look at how the government
| actually functions a majority of these voters are
| strongly net beneficiaries of government (through direct
| and indirect transfers) and have almost no risk from any
| of their votes because the strongest argument you can
| make is their taxes may go up but their transfers will
| likely still cover it and those transfers may be in forms
| that are less optimal than whatever they were spending
| that cash on directly before it was taxed away and then
| transferred back. Its' a very weak claim to having any
| skin in the game. Even among the minority of people
| actually paying for all this and not getting it back as
| transfers, you can make an argument that a subset of
| those guys are also largely insulated because they are
| good at getting excess government subsidy for their
| businesses via lobbying. Overall, there's a very tiny
| group of people who are experiencing actual costs from
| the decisions made by voters, which is stupid. Most of
| the people making the decisions need to have some real
| exposure to their decisions. I would personally do it by
| requiring people put up 2 weeks salary as a bond that
| pays some nominal interest but is stuck for at least the
| period that that election is valid for and if the people
| elected run deficits then the deficit is paid for out of
| the posted salary first prorated so that everyone
| experiences the same percentage of the pain and has to
| post the same percentage again at the next election if
| they want to vote there. You could also solve this by
| limiting voting to the people actually paying but that's
| a really bad idea for abuse reasons. Better to keep the
| voter rolls as broad as possible and just ensure people
| get a taste of the results of their choices as above (or
| through some other method, I'm open to ideas).
| vharuck wrote:
| >Its' a very weak claim to having any skin in the game.
|
| The government is the only entity that can legally take
| away my liberties, possessions, and life. By falling
| under its rule, all residents literally have their skins
| in the game.
|
| Your starting point of money transfers could be read as
| an argument for better economic equality. If, for a
| person with a socially necessary and full-time job,
| taking more in taxes than they receive in benefits will
| financially ruin them, I won't blame the worker.
| snapplebobapple wrote:
| >The government is the only entity that can legally take
| away my liberties, possessions, and life. By falling
| under its rule, all residents literally have their skins
| in the game.
|
| No, what that is is a recipe for tyranny of the majority
| (of weak performers) over the high performers by way of
| voting for policies that transfer wealth from the guys
| that got the job done to the guys that didn't. You are
| conflating the need for a strong constitution limiting
| government power with the idea that because maybe it's
| possible for the government to do some bad things to you
| you should get the right to tell the government to take
| from others and give to you.
|
| Your second paragraph is just wrong. Money transfers are
| abusing one group for the benefit of a different group.
| It's weaponization of the very thing you incorrectly
| claimed as a reason you should get a vote in your first
| paragraph. The argument for transfers would be about
| network effects from the transfer being so great to the
| payer that they are better off (think providing
| healthcare has a network effect of healthier workers and
| customers making the paying business owner better off
| through increased sales/lower sick costs and other things
| of this variety) and the argument would be that if they
| weren't trying to freeload they would do the transfer
| anyway because it is in their interest. Your second
| sentence of your wrong second paragraph is wrong in the
| sense of being nonsensical. if you want to clarify what
| you mean I can then tell you why it's wrong from a logic
| perspective (or maybe I will agree with you, I can't
| tell).
| FactKnower69 wrote:
| >we need a way to make voters universally and roughly equal
| uncomfortable eith poor fiscal managment so they feel the
| pian when they vote thwmselves more stuff without also
| voting in a payment method
|
| another small govt ideologue that thinks the US's federal
| budget works like a household's
| o-90 wrote:
| > They believe that Congress makes the laws, the Executive
| branch enforces them, and the Judicial branch interprets them.
|
| This process that you just described is what produced Chevron
| deference.
| lolinder wrote:
| I'm probably going to get downvoted to hell for mentioning
| downvotes, but it's funny to me that when this comment was on
| the submission for the actual supreme court ruling it ended up
| pinned to the top with 20+ upvotes, but since the merge with
| the Axios article it's been steadily ticking down, having lost
| 18 points in less than an hour.
|
| I don't know if it's brigading or if it says something about
| the difference between readers of Axios articles and readers of
| full supreme court rulings.
| callroomlamp wrote:
| Devastating that expertise will no longer influence the
| application of law and policy. The biggest question is who will
| interpret the application of law? Will it be challenged in court
| once again until a clear statement is made? Meanwhile, what will
| be the effects of this "deregulation" until a clear statement is
| made
| stronglikedan wrote:
| It's not about the _application_ of law. It 's about the
| _ambiguity_ of law. If anything, they 'll need to rely on
| _more_ expertise now, so they can craft laws that aren 't open
| to interpretation. This is a fantastic decision on the part of
| the court.
| radley wrote:
| > It's about the ambiguity of law. If anything, they'll need
| to rely on more expertise now, so they can craft laws that
| aren't open to interpretation.
|
| I doubt that granting Congress more power will inspire them
| to be less political, more responsible, and more governed by
| facts. Particularly when the party that made this decision
| has veered completely in the opposite direction.
|
| If anything, it will be used to prioritize "faith" over fact,
| like what we've seen in Oklahoma and Mississippi.
| rayiner wrote:
| If that party can win elections by doing that, that's what
| should happen. "Expertise" carries zero weight in a
| democracy other than its ability to persuade voters.
| radley wrote:
| But historically, it ends up causing a great deal of
| harm.
| thedragonline wrote:
| As an aside, I've always wondered how society will drive
| the response to climate change into a ditch - it'll be at
| the hands of lawyers (because, you know, they are policy
| experts).
| TylerE wrote:
| You're looking at it. One of the main goals of this push
| is utterly defanging agencies like the EPA
| chasd00 wrote:
| If this defangs the EPA then it needed de-fanging. If the
| EPA can't make a better case for a rule than "my way or
| the highway" then it's a bad rule.
| dctoedt wrote:
| > _If that party can win elections by doing that, that's
| what should happen. "Expertise" carries zero weight in a
| democracy other than its ability to persuade voters._
|
| That's a pretty idealized view: The vast majority of
| voters just want competent governance, with guard rails
| to make sure the governors don't go too far, because they
| (the voters) have lives to live and other things on their
| minds.
|
| As to persuading voters, we should remember the joke
| about Islamist parties' agitation for "democracy": One
| man, one vote -- once.
| rayiner wrote:
| No, it's fundamental to what democracy means and is.
|
| If we wanted "competent governance" we would just have
| China or Singapore run our country.
| dctoedt wrote:
| It's a spectrum, not a binary choice.
| radley wrote:
| Or... just hear me out... we could hire experts in
| various fields, give them general principles to follow,
| let them work out the details, give them the authority to
| enforce it, and maintain the right to step in if they
| overreach.
|
| But yeah, "opinions are greater than facts" is
| technically a very democratic way to do things.
| notaustinpowers wrote:
| > Expertise carries zero weight in a democracy other than
| it's ability to persuade voters.
|
| Would you rather the "holistic healer" who says only
| drinking green juice for a week to "detox" your kidneys
| make laws? Or the person who actually went to med school
| for 12 years.
| xboxnolifes wrote:
| Congress isn't being granted more power here. They're being
| granted more (their original) responsibility.
| TeeMassive wrote:
| > doubt that granting Congress more power will inspire them
| to be less political
|
| Now imagine what unelected government officials who play
| the revolving doors game with the industry they're supposed
| to regulate can do.
| Gormo wrote:
| > I doubt that granting Congress more power will inspire
| them to be less political,
|
| I'm not sure I can wrap my head around the expectation that
| a political institution should be 'less political' -- can
| you explain what you are getting at here?
|
| > more governed by facts.
|
| Fact substantiate 'is', but politics is about 'ought', and
| particularly, reconciling the contradictory 'ought's that
| prevail in varying quarters of society. Expecting politics
| to be 'governed by facts' requires taking a single set of
| values and interests for granted, which effectively means
| codifying one faction's ambitions into law at the expense
| of everyone else.
| impalallama wrote:
| Ambiguity is built in the very nature of language. Good luck
| writing anything doesn't have some ambiguity built in...
| lovethevoid wrote:
| This doesn't prevent writing laws open to interpretation at
| all.
| p_j_w wrote:
| >so they can craft laws that aren't open to interpretation.
|
| In what world is this even humanly possible? Is this
| something conservatives actually believe can happen? If so,
| then they're irrational almost beyond repair.
| rustcleaner wrote:
| Algorithmic law? It's what we've been [weakly] doing for
| millennia.
| vkou wrote:
| The only people who believe law is, has been, or will
| ever be algorithmic are SWEs to whom everything looks
| like a hammer.
| ABCLAW wrote:
| >If anything, they'll need to rely on more expertise now, so
| they can craft laws that aren't open to interpretation.
|
| Every law is open to interpretation. If tech can barely
| secure the doors on machines that execute instructions near-
| flawlessly, you think we can construct flawless frameworks
| out of inherently ambiguous linguistic building blocks run
| and understood by deeply human executors? This just plain
| doesn't work when the rubber meets the road.
|
| Someone's going to make a choice, and SCOTUS just decided
| unilaterally that it's going to be a body that hasn't been
| able to decide anything productively for a decade.
|
| This isn't about creating better structures for the analysis
| of rules; it's about gutting the regulatory capacity of
| agencies.
| tiahura wrote:
| That's why the police should determine innocence and guilt,
| they're the experts.
| agensaequivocum wrote:
| The constitution mandates that the courts interpret the law.
| Thomas and Gorsuch are right in their concurrences, allowing
| the executive branch to both enforce and interpret law is
| abhorrent to our constitution's proscribed separation of
| powers.
| cthalupa wrote:
| Except Chevron was just codification of the status quo that
| had existed since the founding of the country.
|
| Congress cannot be expected to craft every bit of law and
| regulation down to the finest detail, and the gridlock that
| has been congress over the past several decades should make
| it clear that it's practically impossible. The regulatory
| power of federal agencies has never been broad and without
| oversight from other branches - they operate on the authority
| given to them by Congress.
|
| The executive branch has not just been creating agencies
| wholesale and giving them sweeping regulatory powers,
| congress has passed laws creating them and delegating
| authority to them.
|
| As others have mentioned, you can look at the joke that is
| the patent system and the absurd games played around the law
| there to get an idea of what we're in for with this decision.
| I don't understand how anyone can think that's the place we
| want to get to for everything else.
| klyrs wrote:
| The Federalist Society and its adherents see an ineffective
| Congress, and a general inability to enforce regulations,
| as a goal.
| rayiner wrote:
| No, we believe we should follow what the Constitution
| says even if it's convenient. There's virtually nothing
| that unites Federalist Society members (many of whom are
| Biden voters) apart from an engineers' commitment to
| technical accuracy over practical effects.
| beefok wrote:
| _> There's virtually nothing that unites Federalist
| Society members (many of whom are Biden voters) apart
| from an engineers' commitment to technical accuracy over
| practical effects._
|
| In what fantasy universe do Federalist Society members
| vote for Biden? They have been backing conservative and
| libertarians for generations. Their members are part of
| the Supreme Court and _clearly_ do not want a democracy
| anymore. They are the antithesis of liberal political
| positions. I call utter bullshit.
|
| How do their views even remotely line up with Biden
| voters?
| rayiner wrote:
| There's tons of Biden voters in federalist society
| because it's not like Trump is much of a rule follower.
| And Biden himself for most of his career was a
| conservative Democrat.
|
| But I'm flummoxed by something. What does "democracy"
| mean to liberals? You're the ones who want courts to
| decide issues that most other advanced democracies leave
| to voters, right? You believe in unelected bureaucrats
| and experts governing the country instead of elected
| officials. You seem to be using "democracy" in a very odd
| way to refer to rule by educated elites.
| mcmcmc wrote:
| And of course a Congress bought and paid for by lobbyists
| will actually represent voters, right? The US is a broken
| country in decline and actively working towards its own
| destruction
| relaxing wrote:
| We elect the executive to set the policy for and run the
| executive branch.
|
| An EPA employee doesn't "rule" any more than a
| congressional staffer or court clerk.
| TylerE wrote:
| This is the second time you d thrown out this obviously
| bullshit claim about the federalist Society.
|
| It is right wing, period.
|
| It is no surprise that your comment history is full of
| MAGA and Biden conspiracy.
| rayiner wrote:
| _I_ am right wing, because I 'm from a third world
| country. Federalist Society is full of squishy elite
| beltway conservatives.
| intended wrote:
| What makes you think the federalist society isnt
| organized by educated elites?
| Karrot_Kream wrote:
| The Senate allocates equal representation per state
| regardless of population size. Our elections actually
| just vote electors who then vote in an electoral college
| to vote the Executive.
|
| The US system isn't a pure democracy, it's never been.
| Given that, it's a largely political matter which
| institutions you feel should be more democratic than
| others. Article III comes after Articles I and II and
| many believe this is the order of importance that
| branches are given in government. Really where we differ
| is our politics, this is not a debate on obvious
| constitutional interpretation.
| throw0101b wrote:
| > _There's tons of Biden voters in federalist society
| because it's not like Trump is much of a rule follower._
|
| This assumes that the Federalist Society cares about rule
| followers. It is after all the folks that gave Trump the
| short list of names with Gorsuch and Kavanaugh, after
| McConnell refused to give Garland even a hearing.
|
| What was the position of the Federalist Society on
| Garland's situation? Especially since Barrett was
| appointed _just before_ an election.
|
| What is your position as to why Garland was not even
| given the time of day but Barrett was?
| diffxx wrote:
| How would you feel about someone who says "we believe we
| should follow what the bible says even if it's
| (in)convenient"?
| rayiner wrote:
| I think the Catholic church for example should do that.
| The constitution is like America's Bible.
| s1artibartfast wrote:
| Seems fine. Not everything in life is convenient. In
| fact, many of the most important things are hard.
| tastyfreeze wrote:
| That is a false equivalency. The Constitution is an
| explicit definition of what the federal government is and
| what they are allowed to do. The Bible is a collection of
| a bunch of ancient stories.
| 1123581321 wrote:
| Your quote reminded me of people with strong character:
| admitting to a mistake when it might cost them their job,
| urging a friend to return a stolen item, asking fellow
| church members to get to know a paralyzed man.
|
| Putting aside personal convenience is fundamental to
| loving God and neighbor at times.
| radley wrote:
| > Putting aside personal convenience is fundamental to
| loving God and neighbor at times.
|
| No, it's fundamental to character. It's not exclusive to
| religion. That's just part of the myth.
| s1artibartfast wrote:
| Being fundamental to character, love of God, and love of
| your neighbor are not mutually exclusive claims.
|
| Someone could come up with a definition for each that
| excludes this need, but that is true of character and any
| subjective definition.
| 1123581321 wrote:
| I'll just point out that loving God and neighbor is a
| paraphrase of a specific quote from the Bible. That's why
| I mentioned it. The quote is "Love the Lord your God with
| all your heart and with all your soul and with all your
| mind and with all your strength. The second is this: love
| your neighbor as yourself. There is no commandment
| greater than these."
| hobs wrote:
| Where's your following of the other significantly more
| inconvenient parts?
|
| Mixed fibers, prohibitions against eating pork, tattoos,
| fully submissive women, uncovered heads, slavery,
| divorce, etc
|
| Some people actually do attempt to follow some of these
| things, but there's even contradictory information in the
| same book!
| AuryGlenz wrote:
| I mean, I've never been able to wrap my head around
| people who are Christian (or whatever) and pick and
| choose which of the religions "rules" to follow.
|
| I realize to not do so in general makes society a pretty
| awful place, but most religions say you'll go to hell if
| you don't.
|
| It's the Supreme Court's job to explicitly follow the
| constitution. In your example I want them to be religious
| fundamentalists. If that turns out to be an issue we have
| a body that can change our society's "bible."
| quantified wrote:
| Jesus never revoked Leviticus. So that'll be a hard sell
| for most.
| sokoloff wrote:
| In the context of a Church controversy where members of
| the church agree that the Bible is their foundational
| doctrine? I'd feel exactly the same.
| prisenco wrote:
| | _an engineers' commitment to technical accuracy over
| practical effects_
|
| This reads like the design of nightmares.
| TylerE wrote:
| The federalist society is far right, and any attempt to
| suggest otherwise is laughable.
| Matticus_Rex wrote:
| The idea that FedSoc is even particularly coherent in its
| members views is blowing my mind. I dislike plenty of
| recent actions by the org, but FedSoc has always been a
| very broad organization -- not even a "coalition" on much
| of anything. When I was in law school you could find
| people representing 2/3 of the entire political compass
| in its speaker directory. Maybe that's shifted a bit
| since Trump, but without digging I can even think of a
| handful of FedSoc-aligned people opposed to overturning
| Chevron.
| rayiner wrote:
| In your view, "far right" is believing that:
|
| 1) Courts should interpret statutes, not executive branch
| agencies
|
| 2) The separation of powers that the founders went to a
| lot of trouble to implement in the constitution must be
| respected
|
| 3) Judges can't gin up new "rights" from "emanations from
| penumbras" in the Constitution.
|
| These are not "far right" positions--they are obviously
| correct. They're the version of government you learned in
| 8th grade. If they weren't inconvenient for your
| preferred policy preferences, you would think that too.
| joshuamorton wrote:
| This is not a particularly fair representation of the
| general state of the Federalist society's goals (I don't
| even think it's a particularly good representation of
| FedSoc's position on _this case_ , but it certainly isn't
| a good representation of FedSoc's position on e.g.
| religious freedom).
|
| > Courts should interpret statutes, not executive branch
| agencies
|
| This is, of course, impossible. If a statute creates a
| federal agency, the agency must, definitionally,
| interpret the statute. The agency cannot simply wait for
| a court to rule on its legitimacy to exist, much less its
| ability to take particular actions. This doesn't mean
| that executive overreach shouldn't be curtailed by the
| judiciary, but using a standard that good-faith,
| "reasonable" executive interpretations of a statute are
| valid is a fine standard.
|
| > Judges can't gin up new "rights" from "emanations from
| penumbras" in the Constitution.
|
| The 9th amendment (and federalist #84) would have some
| things to say about this.
|
| > The separation of powers that the founders went to a
| lot of trouble to implement in the constitution must be
| respected
|
| This is pretty dubious, there's a clear history and
| tradition, going back to before the founding, of debate
| on the level of federation and separation of powers, and
| the shape of the branches' and federal vs. state powers
| wasn't clearly established until at least 50+ years after
| the founding (Marbury v. Madison and to an extent
| Worcester v. Georgia).
| gnicholas wrote:
| > _many of whom are Biden voters_
|
| I doubt there are many left after last night.
|
| EDIT: I anticipated some downvoting, but honestly how
| many FedSoc members are planning to vote for Trump? I
| can't think of any (and I'm a lawyer, so know more than a
| few).
| tstrimple wrote:
| Yeah, you'd have to be pretty ignorant to think that the
| president who had admitted the most federalist society
| members to the Supreme Court won't be getting any votes
| from members of the organization that he so empowered.
| Like beyond the pale levels of ignorance.
| cthalupa wrote:
| Constitutional scholars since the founding of the nation
| have taken no issue with Congress delegating authority to
| federal agencies, and the initial Chevron decision
| followed along those lines.
|
| Why is it only now, with the hyper-politicization of the
| SC, with interested parties spending significant money
| providing luxury and lavish accommodations to at least
| one member of the SC, that this previously accepted
| interpretation of the constitution is suddenly in
| question?
| rayiner wrote:
| Chevron is about who interprets statutory law, agencies
| or courts. That question has been controversial for 100
| years, ever since we have had administrative agencies.
| For example, the Supreme Court decided in 1944 that
| courts should give some respect to agency
| interpretations, but the court had the final say:
| https://en.wikipedia.org/wiki/Skidmore_v._Swift_%26_Co.
| Chevron didn't create the deference concept until 40
| years after that.
|
| Chevron was always contentious, and applied by courts in
| a rather haphazard way. But overturning it wasn't
| "political." It was originally decided by five
| republicans and a Democrat (with three justices not
| participating) and was overturned by six republicans.
| What happened was an ideological shift in the Republican
| Party to separation of powers that's been going on since
| the 1980s.
|
| Law nerds have been talking about this for decades. The
| only thing "politicized" is how the media is using public
| ignorance of how the legal system works to attack the
| Supreme Court for an extremely academic legal issue.
| cthalupa wrote:
| Citing a prior ruling that contains more precedence
| around the idea that federal agencies should have the
| right to interpret and enforce regulations is an
| interesting way to argue that it's a controversial topic.
| You cite a link that explicitly talks about deference and
| then claim that the concept didn't exist until 40 years
| later.
|
| I'm also unsure how the political makeup of the court 80
| years ago has anything to do with whether or not the
| court is more political now than ever, particularly in
| reference to something that actually is controversial - a
| justice and his family receiving significant compensation
| from politically motivated companies, including those
| that have a vested interest in decisions that he refuses
| to recuse himself from.
| rayiner wrote:
| > Citing a prior ruling that contains more precedence
| around the idea that federal agencies should have the
| right to interpret and enforce regulations is an
| interesting way to argue that it's a controversial topic.
|
| That's not what _Skidmore_ said. It said that courts
| should defer to agency interpretations to the degree they
| are "persuasive." Which is almost a truism--obviously
| courts can defer to reasoning they find persuasive.
| _Chevron_ went further, and _required_ courts to defer to
| agency interpretations if they were "reasonable," even
| if the court would have interpreted the law differently.
|
| > I'm also unsure how the political makeup of the court
| 80 years ago has anything to do with whether or not the
| court is more political now than ever
|
| The Court is less political than ever. In the mid-20th
| century, the Court was at the peak of politicization,
| striking down democratically adopted laws based on
| "emanations from penumbras" of constitutional provisions.
|
| Regarding Thomas, you sound like you're reading from some
| sort of talking points. Thomas was the OG constitutional
| purist. The notion that he's developed this views because
| he want on vacations with his personal friend is absurd.
| cthalupa wrote:
| I imagine both of us sound to the other like we're
| reading from a list of talking points. On your side, I
| see your replies as twisting things around to try and get
| to being right through some narrow definition - obviously
| Chevron further codified things - otherwise we'd just
| reference Skidmore and be done with it. But that doesn't
| change the fact that it was codifying existing practices,
| which is my entire point.
|
| As for Thomas, I do not understand how any rational human
| being could make excuses for him (or Alito, to a smaller
| extent.) If you don't think it is a massive conflict of
| interest to be taking part in rulings related to the
| interests of Crow when he has received millions of
| dollars worth of perks, vacations, etc. from him, I don't
| know that we can have a serious conversation. How can
| anyone remain impartial when the interests of someone who
| has lavished them with the equivalent of many millions of
| dollars in gifts are in the balance? I'm also not stating
| that Thomas is newly compromised, so I'm not sure that
| his original positions mean much when I believe he's been
| compromised from the start. The difference is now that he
| and his compatriots are firmly in the driver's seat.
| rayiner wrote:
| > I imagine both of us sound to the other like we're
| reading from a list of talking points.
|
| I'm talking about an academic debate around _Chevron_
| that's been around ever since I started law school, and
| was already robust for a couple of decades before that.
| This trying to connect it to Thomas's vacations thing has
| come out overnight and seems out of a script.
|
| > But that doesn't change the fact that it was codifying
| existing practices, which is my entire point.
|
| That certainly not what I learned in my administrative
| law class! _Skidmore_ says judges may defer to the agency
| if they find the agency's interpretation persuasive. But
| the judge always retains the power to decide the meaning
| of the statute itself. _Chevron_ changes that
| significantly. The agency interprets the statute, and the
| court can only disagree if that interpretation is
| unreasonable. And _Chevron_ allows the meaning of the
| statute to change with each administration.
|
| > As for Thomas, I do not understand how any rational
| human being could make excuses for him (or Alito, to a
| smaller extent.) If you don't think it is a massive
| conflict of interest to be taking part in rulings related
| to the interests of Crow when he has received millions of
| dollars worth of perks, vacations, etc. from him, I don't
| know that we can have a serious conversation.
|
| You're misreporting the facts, probably because you're
| reading from talking points:
| https://www.forbes.com/sites/saradorn/2023/04/24/supreme-
| cou.... There was one 2004 case, involving a portfolio
| company of Crow's firm, where Crow was not involved in
| the management. Critically: "Crow Holdings and Harlan
| Crow's name do not appear on the 2004 court filings." And
| the Supreme Court rejected the company's certiorari
| petition.
|
| The Supreme Court gets thousands of certiorari petitions
| every year. They identify conflicts based on the people
| who are named in the filings. (That's how all judges do
| it.) The idea that he's corrupt because he voted against
| hearing a certiorari petition--to the detriment of the
| company--in a case where Crowe's name or his company's
| name don't appear, is ridiculous. It's a deliberate
| effort to try and delegitimize the court through
| mudslinging.
| cthalupa wrote:
| > This trying to connect it to Thomas's vacations thing
| has come out overnight and seems out of a script.
|
| Overnight? This has been brewing for years - we continue
| to receive more and more information, but it's hardly
| anything new.
|
| > That certainly not what I learned in my administrative
| law class! Skidmore says judges may defer to the agency
| if they find the agency's interpretation persuasive. But
| the judge always retains the power to decide the meaning
| of the statute itself. Chevron changes that
| significantly. The agency interprets the statute, and the
| court can only disagree if that interpretation is
| unreasonable. And Chevron allows the meaning of the
| statute to change with each administration.
|
| I'm not sure if I'm being strawmanned here or we're just
| talking past each other.
|
| My point is that federal agencies had been taking
| regulatory action before both Skidmore and Chevron. Do
| you disagree with this statement? If so, how do you
| suppose that these cases even got to the Supreme Court? I
| am not arguing that Skidmore and Chevron did not further
| codify the procedures, but that the status quo was
| Congress being able to create federal agencies with
| regulatory authority, and that the explicit reversal of
| Chevron is a significant neutering of the ability for
| both the legislative and executive branch to do that.
|
| > Critically: "Crow Holdings and Harlan Crow's name do
| not appear on the 2004 court filings." And the Supreme
| Court rejected the company's certiorari petition.
|
| Crow spends significant portions of his fortune on
| political lobbying. He clearly has interests that the
| Supreme Court weighs in on that do not involve him or his
| companies directly as a plaintiff or defendant. I think
| it is ludicrous that any justice would feel it is
| acceptable to receive millions of dollars in benefits
| from someone who is so active in the political arena, and
| I would say the same if it came to light that liberal
| justices had done so. How you think it isn't a conflict
| of interest is beyond me. I know I have biases on, say,
| gun control, due to having several friends that are
| extremely pro-gun, and the most they buy for me is drinks
| on my birthday. It beggars belief that you honestly think
| Thomas would not be influenced in his decisions by his
| "personal friend's" largesse.
| jpmoral wrote:
| > But overturning it wasn't "political." It was
| originally decided by five republicans and a Democrat
| (with three justices not participating) and was
| overturned by six republicans. What happened was an
| ideological shift in the Republican Party
|
| Your conclusion doesn't match your argument. The original
| decision was voted in along party lines, the party
| ideology changed, and now it's been overturned again
| along party lines. How is that not political?
| throw0101b wrote:
| > _Chevron was always contentious_ [...]
|
| Chevron was a unanimous 6-0 decision: there was no debate
| on its principles at the time.
|
| Chevron said that it was not up to the courts to decide
| policy when there was ambiguity:
|
| > _When a challenge to an agency construction of a
| statutory provision, fairly conceptualized, really
| centers on the wisdom of the agency 's policy, rather
| than whether it is a reasonable choice within a gap left
| open by Congress, the challenge must fail. In such a
| case, federal judges--who have no constituency--have a
| duty to respect legitimate policy choices made by those
| who do. The responsibilities for assessing the wisdom of
| such policy choices and resolving the struggle between
| competing views of the public interest are not judicial
| ones: "Our Constitution vests such responsibilities in
| the political branches."_
|
| If there is ambiguity it is either on purpose (to allow
| flexibility) or by accident (unforeseen or change
| circumstances): it was thought that it is best for policy
| makers to deal with that ambiguity.
|
| Remember: the agencies are headed by an Executive that is
| elected (President), and run my administrators
| (Secretaries, Directors) that are Senate-confirmed. There
| is connection to the will of The People throughout their
| operation.
| JumpCrisscross wrote:
| > _there was no debate on its principles at the time_
|
| The part that made _Chevron_ consequential wasn't
| recognised at the time.
| Matticus_Rex wrote:
| Erm... I think there will be problems as a result of
| this, but your comment is wildly bad on a number of
| levels.
|
| #1 - Chevron deference as a _rule_ comes out of Chevron,
| and the idea that Chevron just encoded something that was
| already always done is ahistorical. Both before Chevron
| and going forward, courts will still often defer to
| agency interpretation when that makes sense. They just
| won 't be compelled to look at it so uncritically.
|
| #2 - The idea that Chevron has been uncontroversial until
| now is totally detached from reality, and is a dead
| giveaway that you really don't know much about this.
| cthalupa wrote:
| #1 - Prior to Chevron, did Congress delegate authority to
| federal agencies to impose regulations? The answer is
| yes. Prior to Skidmore, did Congress delegate authority
| to federal agencies to impose regulations? The answer is
| yes.
|
| The fact that Chevron codified things in a more
| structured way does not change the fact that it was a
| ruling about an existing practice. How are you arguing
| otherwise? Both rulings were about things that were
| already happening. Neither Skidmore or Chevron resulted
| in the brand new practice of federal agencies having
| regulatory power.
|
| #2 - Of course there is always dissent around laws and
| decisions. Obviously, however, the majority of the past
| century has had further support for federal agencies
| having regulatory power. It is only the past half decade
| where there has been significant pushback. People are
| sitting here complaining about how for so long the SC
| increased their deference to Chevron - how would that be
| the case if it was controversial within the court? Weird
| that we had more than 70 years of the courts just
| strengthening their position on this if it was so
| controversial the whole time, rather than something that
| has been a significant change over the past half decade.
| gamblor956 wrote:
| "Federalist Society" and "commitment to technical
| accuracy" are diametrically opposed concepts. You are
| right about them not caring about the practical effects
| of their actions.
| EricDeb wrote:
| Textualism when convenient you mean.
| rustcleaner wrote:
| My voting pattern is to ensure minimum cohesion between
| parties in the State. When all parties agree, watch out
| they're a-comin'!
| bombcar wrote:
| The whole point of the judgement is that the status quo
| continues.
|
| Congress passes laws, the agencies implement them, if you
| disagree you go to court. All it's saying is that you don't
| have to go to the Supremes to get your disagreement to win.
|
| Imagine a patent system where the judge could _never_ throw
| out a patent, because the experts at the agency (patent
| office) had granted it, so it must be valid.
| cthalupa wrote:
| This effectively neuters the ability for federal agencies
| to create regulations within the specific areas that
| Congress has tasked them with regulating. This is a
| significant blow to both legislative and executive
| branches, and further entrenches the power in the
| judiciary.
|
| In both reality and your supposed system, someone could
| always go to appointed officials and get their patent
| enforced - just look at how the Eastern District of Texas
| operated for decades. In reality, we see far more
| frequent turnover and shifting of opinion in federal
| agencies than we do in the judiciary. Just look at how
| often Net Neutrality has flopped back and forth at the
| FCC. (Constant reversal of regulatory decisions is also
| an issue, but it goes to show that the idea that a patent
| system that exists outside of judiciary control wouldn't
| have plenty of opportunity to make your case to
| sympathetic ears is silly)
| dantheman wrote:
| The agencies can draft any ruels they'd like and put them
| before congress. Perhaps we can have less rules...
| EricDeb wrote:
| philosophically I see what you're saying, but will
| congress be good at passing small laws to amend the ever
| changing regulatory landscape? I'm going to guess no. So
| practically this could be a nightmare
| jellicle wrote:
| Except that instead of deciding a specific patent, now
| all you need is one judge to throw out "patents". Or
| "environmental law".
| Gormo wrote:
| > Except Chevron was just codification of the status quo
| that had existed since the founding of the country.
|
| The concept of administrative law did not even exist at the
| founding of the country -- executive-branch agencies making
| rules directly applicable to the public wasn't really a
| thing until about the turn of the 20th century.
| throw0101c wrote:
| > _The constitution mandates that the courts interpret the
| law._
|
| The idea of Congress delegating certain powers dates back to
| 1825:
|
| * https://constitution.findlaw.com/article1/annotation03.html
|
| Further precedents from the 1920s and 1930s (and more recent)
| are listed in the above link. It's not a new idea that some
| ambiguities are left to the Executive to figure out.
| ImJamal wrote:
| Congress can still delegate certain powers even after this.
| vkou wrote:
| And every time they will, the courts will find that the
| delegation is not specific enough.
|
| Never mind that congress appoints the heads of the
| agencies, writes the laws directing them, and on an
| annual basis, renews funding for them.
| ImJamal wrote:
| Maybe, but since this ruling just happened today I think
| we will have to wait and see what happens.
| surfaceofthesun wrote:
| Adding on to this:
|
| In addition to funding renewals, congress can make
| specific tweaks at any time to correct anything they
| dislike with regard to the executive branch. The ruling
| pretends like this avenue hasn't existed and been used
| the entire time.
| mp05 wrote:
| Perhaps this will cause us to start electing experts instead of
| lifelong politicians? The number of doctors, engineers, and
| scientists in Congress is pathetic.
| ldf80g804 wrote:
| I keep telling people. Make stochastic democracy happen,
| where every 4 years randomly selected individuals populate
| the house to have a simple yay/nay vote on senate generated
| items ( senate can stay as is ). I used to joke about it, but
| I no longer think I am.
| taylodl wrote:
| Devil's advocate: isn't a lifelong politician an expert in
| politics? Isn't it the case that with so many noobs in
| Congress nothing is getting done because they simply don't
| know how to politic to get things done? All they know how to
| do is run to the nearest TV camera and start slandering
| everybody they don't like. Then they wonder why they can't
| broker deals to get what they want.
|
| Besides, very few doctors, engineers, and scientists want to
| have anything to do with politics. They generally abhor the
| practice of politics and generally don't see it as a skill
| they need to develop. Without that skill, they'll be just as
| ineffective as the Congress we have today.
| mp05 wrote:
| I think one could make an argument that the US system of
| governance was designed to encourage "politicking" by
| populist types in the House. Love him or hate him, LBJ was
| _excellent_ at this sort of thing and an ideal
| representative. But I 've read a lot of Caro and it seems
| he feels the US Senate has jumped the shark in this regard.
| The narrative laments the glory days of high-minded debate
| and the occasional cane beatings, but it's hard to say if
| that's Caro's actual view.
|
| But it's fair to argue the Senate wasn't built for
| politicking, yet that's what it's devolved into. I'm a
| political layman, but perhaps popular vote of senators is a
| terrible idea as it discourages people unwilling to play
| hardball to get involved... these engineers, doctors,
| scientists, etc. It takes a special kind of thick skin to
| be in national office and those type of people don't seem
| to gravitate to science-based fields, but rather law and
| professional politics.
| taylodl wrote:
| I agree on both counts. The House was, by definition, the
| populist component of the government. That was the _only_
| representation that _We The People_ got. The state
| legislature was supposed to elect the state senators, and
| the state legislature was to nominate an even smaller
| group of electorates to choose the president.
|
| But the fact the state legislature elected the state
| senators reflects your point that the senate was intended
| to be more "serious."
| larkost wrote:
| I don't think it is the inexperience level in congress that
| is the driving factor. Ted Cruz has been in the Senate
| since 2013, and he is absolutely one of the problematic
| members. Former President Trump is similarly anti-
| compromise and similarly a bomb-thrower rather than a
| politicker.
|
| The main problem as I see it is that to many people have
| entered their own little political bubbles (a problem on
| both the major parties), and that on one side it has become
| common to lie outrageously (election denial, "Biden Crime
| Family", etc...) and to baselessly vilify their opponents
| in unfair and repugnant ways ("groomers", "killing babies
| after birth", etc...).
|
| There is a real historical parallel to this: the U.S. Civil
| War. In the run-up to the election of Abraham Lincoln the
| Southern Democrats absolutely vilified him, saying things
| like he was going to free the black slaves (not his plans
| at all at that point) and make slaves of poor white folks.
| Many of these species were made on the floors of the House
| and Senate to be picked up in the newspapers in their home
| districts.
|
| When Lincoln won (largely because the Southern Democrats
| split their vote), this rhetoric had taken on a life of its
| own and the populace was so enraged that it would have
| taken real leadership in the south to prevent war. And so
| we went to war with ourselves.
|
| And about what really? Certainly slavery was the over-
| arching issue, but what specifically about it? Lincoln won
| on a platform of status-quo. There was to be no effort at
| freeing slaves (there were 4 slave-owning states in the
| Union, and slavery happened in a number of new territories
| like California during the war), and the only anti-slavery
| thing Lincoln committed to was to no expand slavery into
| the new territories: something that had already been agreed
| to.
|
| The U.S. Civil War started because a failed political
| strategy to lie to their own voters got away from the
| Southern Democrats.
|
| I am truly scared that we are approaching that today. There
| is no-one with any integrity left in Republican leadership.
| Their voters have been lied to so much and so long that the
| idea that the leaders of the Democratic Party both are
| tying to "groom" children and to literally suck their blood
| in some ritual to live longer are nearly main-stream within
| Republican circles. And Republican leadership is alright
| with that, so long as they think it will get them elected.
| lovethevoid wrote:
| That'll happen about the same time the Supreme Court stops
| being used as a political party battleground. So... never.
| rayiner wrote:
| Untrue. The way it will work now is that judges will focus on
| their expertise--interpreting what the laws mean. And agency
| experts will focus on their expertise--applying that law to
| specific factual scenarios.
| dctoedt wrote:
| > _judges will focus on their expertise--interpreting what
| the laws mean. And agency experts will focus on their
| expertise--applying that law to specific factual scenarios._
|
| It's not always that simple: Sometimes, trying to interpret
| "the law" in the abstract, without deep knowledge of the
| factual context, is like being a bull in a china shop.
|
| The conservative justices' various obsessions with
| textualism, originalism, and whatever other flavor of the
| month comes up, are often unrealistic. Ditching _Chevron_
| deference, in the teeth of _decades_ of precedent and
| congressional approval, is one of those situations.
|
| Granted, your 3d Cir. clerking experience, seeing that aspect
| of how the sausage is made, does give your view a certain
| weight. But too many judges need to start remembering that
| they're hired help, bureaucrats, and when Congress says "we
| want the agencies we create to figure out what to do, subject
| to political checks," it's manifestly not on federal judges
| to say "oh no, you can only do that in a way that lets us
| judges have the dominant seat at the table."
| salawat wrote:
| Judges are Article III, and the need for them laid out
| explicitly in the text of the Constitution itself.
|
| Chevron deference, and the corpus of administrative law
| unsubject to judicial review it spawned, most decidedly is
| not.
|
| That makes judges a bit more of a fixture in the grand
| scheme of things than all these "agencies" running their
| own pseudo-courts so that Congress critters can spend their
| tenure voting one another pay raises, and insider trading
| among themselves.
|
| >it's manifestly not on federal judges to say "oh no, you
| can only do that in a way that lets us judges have the
| dominant seat at the table."
|
| Actually, it manifestly _is_ on the judiciary to say that.
| If Congress started adding clauses to legislation to the
| tune of "this law is not subject to judicial review", the
| judiciary is fully within it's rights as outlined by the
| Constitution to strike down the law, as the Legislature, by
| definition, cannot produce a thing with force of law
| contradicting a limitation placed on it by the Constitution
| short of another Constitutional Amendment + the requisite
| ratifications. An unconstitutional law, is no law at all.
| The issue of constitutionality is purely the realm of the
| judiciary. No one else. You can change what the Judiciary
| looks like; but you can't structurally usurp it's powers
| under the Constitution.
|
| There is a reason Jefferson and Madison were really nervous
| about how the judiciary ended up playing out in practice
| though.
| bcrosby95 wrote:
| Congress is the body that defines the specific shape of
| the judiciary though - the current makeup is largely
| because of the Judiciary Act of 1789. All the
| constitution says is there's a supreme court - the rest
| congress figures out.
|
| Why not carve out a part of each regulatory body
| belonging to the Judiciary then? This would require no
| constitutional amendment.
| dctoedt wrote:
| > _If Congress started adding clauses to legislation to
| the tune of "this law is not subject to judicial review",
| the judiciary is fully within it's_ [sic] _rights as
| outlined by the Constitution to strike down the law_
|
| I'm not suggesting that Congress go that far. But don't
| forget the Exceptions and Regulations Clause in Article
| III: "In all the other Cases before mentioned _[i.e.,
| establishing various grounds of federal-court
| jurisdiction]_ , the supreme Court shall have appellate
| Jurisdiction, both as to Law and Fact, with such
| Exceptions, and under such Regulations as the Congress
| shall make."
|
| That sounds pretty plenary to me. And Congress has
| sometimes exercised that power, e.g.:
|
| * Severely limiting and even foreclosing judicial review
| of certain types of decision by immigration authorities:
| 8 U.S.C. SS 1252(g)
|
| * Ditto for decisions about Social Security: 42 U.S.C. SS
| 405(h)
|
| My vague recollection from law school is that SCOTUS has
| said that this is OK as long as Congress provides
| sufficient due process via other means.
|
| > _The issue of constitutionality is purely the realm of
| the judiciary. No one else._
|
| It's astonishing how such an exalted view of the judge's
| role has taken root and spread like kudzu from its
| origins in John Marshall's brazenly-bootstrapped argument
| in _Marbury v. Madison_ (and the All-Writs Act).
| lovethevoid wrote:
| Actually without C Deference, agency experts can no longer
| apply that law to specific factual scenarios.
| jordanb wrote:
| Technically they still can do that but they can now be
| overridden by any judge for any reason. This is an obscene
| power-grab by our most corrupt and least accountable branch
| of government.
| Gormo wrote:
| I'm not quite following here -- how does stopping
| executive-branch employees from stepping far outside of
| their technical expertise into the world of statutory
| interpretation and constitutional law stop them from
| continuing to conduct their duties prescribed by law, as
| explained by the judiciary?
| locopati wrote:
| do you mean the way judges support taking away bodily
| autonomy or pushing Christian ideas over a separation of
| church and state?
| EricDeb wrote:
| Well soon agency experts will focus on displaying their
| loyalty to Trump as their main job focus. But yes in theory
| what you're saying is true
| twoodfin wrote:
| What does "expertise" have to do with whether Congress
| authorized fishermen to be charged for government-mandated
| inspectors?
| ceejayoz wrote:
| Congress was pretty explicit about that; they wrote it in the
| legislation.
|
| https://www.law.cornell.edu/cfr/text/50/679.55
| massysett wrote:
| You're citing an Executive-branch regulation, not a law
| from Congress.
| ceejayoz wrote:
| My bad.
|
| The regulation stems from https://en.wikipedia.org/wiki/M
| agnuson%E2%80%93Stevens_Fishe..., which says things like:
|
| > United States observers required under subsection (h)
| be permitted to be stationed aboard any such vessel and
| that all of the costs incurred incident to such sta-
| tioning, including the costs of data editing and entry
| and observer monitoring, be paid for, in accordance with
| such subsection, by the owner or operator of the vessel
| curiousllama wrote:
| The court made their decision at a very high level of
| abstraction, rather than limiting it to fishermen.
| gnicholas wrote:
| Of course expertise will still influence the application of law
| and policy. The same people will still write the regulations,
| serve as expert witnesses in trials, and write _amicus_ briefs.
| The thing that has changed is that the executive branch 's
| preferred interpretation of laws passed by the legislative
| branch will no longer be granted deference by the judicial
| branch. They will be on a level playing field with other
| parties when it comes to putting forth proposed interpretations
| of laws.
| mywittyname wrote:
| This assumes the court can even hear cases in a reasonable
| amount of time.
|
| An overloaded court system means that defendants are put at a
| disadvantage and can likely be strong-armed into an agreement
| that is unfavorable. At least with agencies, companies knew
| where they stood, after all, most companies probably have a
| few former agents on staff.
|
| Now it's, better hope you don't lose an injunction and you
| get a judge capable of understanding the technical reasons
| why your company should be allowed to operate in that
| capacity.
|
| I don't think this is the pro-business win that conservatives
| claim it is. It just changes the rule of the game in ways
| that I think favor the government. If an agency gets an
| injunction, then continues to press for continuance based on
| the fact that they don't have the resources right now, and a
| judge buys it, then the company end up in judicial purgatory.
| deveac wrote:
| >This assumes the court can even hear cases in a reasonable
| amount of time.
|
| If it's a bandwidth issue, reducing the number of extra-
| judicial bureaucrats and upping the number of judiciary is
| pretty straightforward. Seems like a pretty simple
| rebalancing issue.
|
| >Now it's, better hope you don't lose an injunction and you
| get a judge capable of understanding the technical reasons
|
| Why would experts (like those that were informing executive
| agencies on their payroll) not be called here?
| CuriouslyC wrote:
| Because the judiciary has been so performant as of late.
| thyrsus wrote:
| The executive is supposed to represent the public interest,
| opposed to the interests wealthy enough to bring a lawsuit.
| We seem to have given up on that.
| gnicholas wrote:
| Aren't all of the branches of government supposed to
| represent the public interest? What makes the executive
| uniquely qualified to do so? I would think that there are
| few people who would say that the past two administrations
| have both represented the public interest. People tend to
| think that their favored administration was serving the
| public interest, and the disfavored one was tearing down
| the progress of his predecessor.
| psynister wrote:
| That's pretty generous to claim that expertise is what was
| influencing application of law and policy before this. Agency
| oversight got us Ajit Pai deciding to kill net neutrality.
| VoodooJuJu wrote:
| >Devastating that expertise will no longer influence the
| application of law and policy
|
| Not true.
|
| Congress is free to continue to delegate to experts when it
| comes to writing laws and policy. What they are no longer free
| to do is write vague laws and policy and expect the judicial
| branch to inject their own favor when interpreting that
| vagueness. The judicial branch will once again do what it
| should have been doing all along: simply interpret the law.
|
| Basically, Congress actually has to do its job and write better
| laws. And again, they are free to consult experts when writing
| these laws.
|
| The judicial branch is actually once again functioning the way
| it was intended. It is restoring balance to the "checks and
| balances".
| refurb wrote:
| > Devastating that expertise will no longer influence the
| application of law and policy.
|
| How on earth do you come to that conclusion? Nothing stop
| Congress from leveraging experts in drafting laws.
|
| This simply requires that interpretation of law be done in a
| clear transparent way (courts), rather than by a nameless,
| faceless, unelected bureacrat.
|
| How can anyone say "no, I'd rather have some bureaucrat do it"?
| esoterica wrote:
| Judges are also unelected bureaucrats, and they are less
| subject to democratic oversight since they have lifetime
| appointments vs agency heads who are appointed by the
| executive branch and can be effectively "voted out" if voters
| choose a different president who replaces them.
| kyrra wrote:
| But whose expertise. The problem is that with every change in
| the administration, The rules change because there are new
| experts that interpret the rules in a different way. Chevron
| deference led to instability of understanding what the law was.
| Gormo wrote:
| > Devastating that expertise will no longer influence the
| application of law and policy.
|
| You've got it exactly backwards. The relevant expertise in
| interpreting law and policy resides with the judiciary.
| Allowing administrative officials with no background in
| constitutional law or statutory interpretation to decide for
| themselves what the law they operate under means has lead to
| devastating power imbalances and opened the door to wide-
| ranging corruption and overstepping of authority.
| persnicker wrote:
| This is a fantastic outcome.
|
| If you give an agency the power to interpret the law that
| congress has prescribed to the agency, the agency will almost
| always chose an interpretation that is in their self-interest -
| often leading to a corrupt (really, just an outright wrong)
| interpretation of the law.
|
| It's surprising that Chevron was ever even case law. Thank
| goodness we have a set of justices that are actually looking to
| get rid of conflicts of interest and focus on an objective and
| conflict-free rule of law.
|
| It seems based on the dissent liberals want to relish in giving
| government agencies power to interpret what they want, which is
| consistent with yesterday's dissent from the liberals where the
| liberals dissented with the SEC case where the liberals dissent
| stated that the SEC should be able to prosecute individuals in
| their own SEC-based rules with their own SEC-based court.
|
| The court system is moving to ensure there are more checks and
| balances and that the law is interpreted and prosecuted in a way
| that has less conflict of interest.
| EricDeb wrote:
| I strongly disagree. As someone above said it's the equivalent
| of requiring a meeting for every commit when building software.
| How good do you think congress will be at passing small laws
| when changes need to be made in federal agencies regulations?
| OutOfHere wrote:
| I am really not a fan of the current Supreme Court, but this
| looks to be a good ruling. Agencies get carried away by their
| power, and this power requires stronger checks by real courts,
| not by the fake agency courts that always rule in favor of the
| agency. I make no judgment on how this ruling will be used or
| abused.
| OutOfHere wrote:
| To continue, although people will complain about the risk of
| environmental harm from this ruling, this harm is more a
| function of easy loans to companies that emit pollution. If you
| were change the money supply back to being gold-backed, the
| easy loans go away, the "growth at all costs" mantra dials
| back, and the ongoing environmental harm thereby modulates
| itself. It is the root cause of the unsustainable growth and
| environmental evils we see.
| voxic11 wrote:
| Also its funny because the original Chevron case was about
| how under Reagan the EPA re-interpreted the Clean Air Act to
| make it easier for companies to introduce new pollution
| sources. The EPA was sued and the lower courts backed the
| original interpretation of the Clean Air Act. This was
| overturned by the Supreme Court in the Chevron decision which
| said the courts must defer to the EPA's new interpretation.
|
| So the environmental impacts of this decision are hardly
| clear cut.
| cdaringe wrote:
| So if I work for the ohhh I dunno department of energy, and im
| working on rules for, uh, i dunno, radiation exposure. Does this
| mean that DOE cant what--set legally safe exposure levels? The
| court has to?
| colejohnson66 wrote:
| Or Congress
| xboxnolifes wrote:
| Only if congress didn't expressly give the department the right
| to do so in legislation.
| vharuck wrote:
| (IANAL, but here's my reading)
|
| You can set them. The difference is, if the DOE is sued over
| that regulation, the court will make it's own judgement as to
| what the law intended. Should there be radiation exposure
| rules? If so, what should the levels be? How should they be
| measured? What is covered by those rules?
|
| The DOE will get its say. But the court would be free to
| conduct its own research or give whatever weight it wants to
| the plaintiff's arguments for interpreting the law.
| leotravis10 wrote:
| Get ready for the Judicial Branch (especially the Supreme Court)
| to be in charge of every federal agency going forward. It's going
| to get real ugly....
| josefritzishere wrote:
| This decision conflicts with their decision on the homeless. In
| one case local laws are enforcible, in the other, we are
| powerless to regulate. In both cases the balance of power shifts
| to the party already more powerful. Calling it disingenuous would
| be charitable.
| rayiner wrote:
| Can you articulate what you think the conflict is?
| neonate wrote:
| https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
| chucke1992 wrote:
| So basically now the agencies won't need to think about
| interpreting the law themselves?
| dilippkumar wrote:
| There's a lot of negativity around this ruling here on HN.
|
| As a not-lawyer, non expert, I welcome this ruling. The strongest
| argument I can make in favor of this come from the dissenting
| opinion by Justice Kagan:
|
| > This Court has long understood Chevron deference to reflect
| what Congress would want, and so to be rooted in a presumption of
| legislative intent. Congress knows that it does not--in fact
| cannot--write perfectly complete regulatory statutes...
|
| > It knows that those statutes will inevitably contain
| ambiguities that some other actor will have to resolve, and gaps
| that some other actor will have to fill. And it would usually
| prefer that actor to be the responsible agency, not a court...
|
| In other words, Congress can not get its shit together, but
| someone still has to do the work of figuring out what rules we
| should all follow. Congress would much rather play politics and
| make speeches and theatrical high-drama hearing rather than doing
| the hard work of legislating laws.
|
| It is obvious that Congress can not get all the details right.
| Neither can the regulatory body. The only advantage of delegating
| the work of rule-making to regulators is that the iteration times
| are faster.
|
| Why are the iteration times faster? It has more to do with the
| Congress being a dysfunctional body.
|
| When incompetence is rewarded by reduced work loads, incompetence
| is amplified.
|
| Yes Congress can not get their shit together. But that's way more
| visible to voters when their incompetence translates to visible
| inaction.
|
| This is the way the system should work (in my opinion). Feels
| like a positive ruling to me.
| wnevets wrote:
| The heritage foundation is doing so much damage to this country
| debacle wrote:
| Good. Make Congress do its job. Erode the executive until we're
| not frothing at the mouth every 4 years worrying about who will
| be "in charge," and instead focusing on the actions of our
| congressional representatives.
| Spivak wrote:
| So we froth at the mouth every two years instead? I get the
| argument but I'm not really sure this is going to help in the
| way you want it.
| debacle wrote:
| Absolutely. I have 400 times more control over who my
| congressman is than who the president is.
| jliptzin wrote:
| But your congressman has less than 1/400 the power of the
| President.
| asdff wrote:
| Realistically the president doesn't do all that much to
| affect the course of the country relative to congress.
| pelorat wrote:
| Trump literally ruled by executive order.
| asdff wrote:
| And how much did anything change outside your window as a
| result of that?
| Invictus0 wrote:
| Pretending like total control of foreign policy isn't the
| greatest power of all
| asdff wrote:
| Even trump was on a tight leash with that and basically
| just carried the old torch like every president does. Oh
| I guess he had too much lunch with putin but its not like
| he took us out of NATO kind of like the conservatives in
| the UK did with the EU and brexit. A bunch of talk but
| the same old neoliberal walk we've been doing for
| decades.
| Invictus0 wrote:
| https://www.cfr.org/timeline/trumps-foreign-policy-
| moments
|
| I feel like you may not be remembering his presidency
| properly
| free_bip wrote:
| This won't "make" Congress do anything. They'll continue
| sitting on their asses because they face no consequences for
| their (in)actions.
| BadHumans wrote:
| I imagine this is table setting to give the Trump stacked courts
| more range for when he wins.
| throwaway4220 wrote:
| What does this mean for the FDA?
| unethical_ban wrote:
| The supreme Court is hosting a revolution upending the common
| understanding of modern government, without firing a shot.
|
| We need to amend the constitution to revert what these jurists
| are doing to destroy our administrative state.
| MR4D wrote:
| Congress can't write good laws (good = clean, unambiguous) due to
| a variety of reasons, most of which are just political and not
| practical reasons.
|
| Here's hoping this decision causes Congress to write laws with
| more clarity now that they cannot be as sloppy and get away with
| it.
|
| There may be much upheaval in the short term, but for that reason
| alone, I think it will have a positive impact on the country.
|
| One other reason I think this decision is good - if we are
| innocent until proven guilty, then ambiguities should go in favor
| of the individual not the State.
| masklinn wrote:
| > Congress can't write good laws (good = clean, unambiguous)
| due to a variety of reasons, most of which are just political
| and not practical reasons.
|
| A massive reason in this case is that congress are not matter
| experts, laws are already large and unwieldy, and agencies need
| flexibility in their work as, as ponderous as they are, they're
| still more nimble than congress and need that in order to react
| to changes in the area they regulate.
|
| > One other reason I think this decision is good - if we are
| innocent until proven guilty, then ambiguities should go in
| favor of the individual not the State.
|
| I'm sure the individual will greatly benefit when the EPA's
| regulation of the next great carcinogen is struck down on
| grounds that congress has not explicitly restricted it.
| deveac wrote:
| >A massive reason in this case is that congress are not
| matter experts,
|
| Perhaps they should not be crafting new laws concerning
| things that they do not understand. If this results in fewer
| new laws, that may be better. If this also results in their
| having to spend more time doing homework on new urgent laws
| of greater importance, that may also be a good thing.
|
| A return to the Constitutional prescription that Congress
| writes the laws, the Executive administers them, and the
| Courts interpret them certainly does not seem inappropriate,
| and discarding this framework in the name of arbitrary
| desired outcomes like EPA rulings feels off. If it's a
| bandwidth issue, maybe we should up the number of judiciary
| and lower the number of extra-judicial agency bureaucrats.
| throwaway4220 wrote:
| It all sounds great on paper, but real world ambiguity has
| to be dealt with on an expert level with some teeth.
| masklinn wrote:
| > Perhaps they should not be crafting new laws concerning
| things that they do not understand.
|
| Which is why instead of crafting new laws concerning things
| they do not understand, they appoint agencies for the
| purpose of understanding the things and regulating them.
|
| > If this results in fewer new laws, that may be better.
|
| It certainly does if you don't like your patent medicines
| being regulated.
|
| > If this also results in their having to spend more time
| doing homework on new urgent laws of greater importance,
| that may also be a good thing.
|
| This ruling will do the exact opposite at best. Again, the
| point of federal agencies is to take on the burden of
| understanding and regulating specific domains. That way
| congress can work on the broad strokes and leave the
| details to expert _they can consult_.
|
| > A return to the Constitutional prescription that Congress
| writes the laws, the Executive administers them, and the
| Courts interpret them certainly does not seem inappropriate
|
| That is not what this ruling does. This ruling is a
| decision by the courts that policy is decided by the
| courts. Even though congress delegates to executive
| agencies for that exact purpose.
|
| Literally the first test of the Chevron doctrine is "does
| the law already cover this specific issue". The second test
| is "is the agency allowed to interpret or regulate this
| issue under its statutes".
|
| If the first is a yes, then the agency has no grounds to go
| against congress. If the second is a no, then the agency
| does not have standing. Otherwise, the courts defer to the
| agency as the agent of congress on the matter.
|
| > If it's a bandwidth issue, maybe we should up the number
| of judiciary and lower the number of extra-judicial agency
| bureaucrats.
|
| That does not follow, makes absolutely no sense, and would
| in fact do the exact opposite. Because under the completely
| wacky idea that agencies have no rulemaking or regulatory
| powers they would have to be staffed by 90% lawyers as
| _they would have to bring everything to court_.
|
| Again, against the express purpose of their establishment
| and statutes.
| FactKnower69 wrote:
| >I'm sure the individual will greatly benefit when the EPA's
| regulation of the next great carcinogen is struck down on
| grounds that congress has not explicitly restricted it.
|
| This is the real motivation; the Lead Paint voting bloc is
| dying off and desperately needs replacing if current
| political demographics are to be maintained
| cryptonector wrote:
| You imply that Chevron is a big reason for why Congress has
| become ineffective. I think you're right.
| CobrastanJorji wrote:
| Why did the Supreme Court invent Chevron deference 40 years ago?
| To serve corporations. It's not called "Chevron" because it's
| about inverted V's, after all. The EPA wanted to interpret the
| law in a way that Chevron liked and the Natural Resources Defense
| Council did not like, so the Supreme Court said "no, no, the EPA
| gets to decide, we are but poor unqualified judges."
|
| Why did the Supreme Court take it away? Because agencies started
| interpreting laws in ways that corporations did not like, so the
| Supreme Court changed its tune to "who are these agencies to
| interpret the law, we are the judges here."
| RIMR wrote:
| This is pretty much direct irrefutable evidence that the SCOTUS
| has been corrupted. The extreme ideological tilt is disturbing
| enough, but it's clear that these judges answer to the highest
| bidder, not the American people or the intent of the Founding
| Fathers.
| onlyrealcuzzo wrote:
| If the spirit of the ruling originally by the SCOTUS was to
| benefit corporations , and they overturned it because it was
| no longer benefiting corporations - are they really
| corrupted? Or just business as usual?
| soerxpso wrote:
| What? Some guy making a vague statement on a web forum with
| nothing concrete to back it is "direct, irrefutable
| evidence"? I'd like to see any evidence at all that any
| SCOTUS judge is actually profiting from this decision in any
| way. Chevron was corrupt 40 years ago; overturning it is not,
| or at least isn't more corrupt than the decision originally
| was in the first place.
| fzeroracer wrote:
| Clarence Thomas? The huge amount of gifts he's taken from
| Republican donors who have ties to real estate companies
| and businesses that benefit the most from things like
| 'pesky environmental regulations' being weakened or
| removed?
| lefstathiou wrote:
| Per the written opinion, Congress started purposely drafting
| vague laws with the intent of having them interpreted by
| unelected (politically appointed) officials in a manner that
| best suited their agenda.
|
| So it seems reasonable to me that once the circumstances change
| (or we have more data), so would the law. It was a nice
| experiment, I'm glad we tried it, now we know people are
| people, and thankfully it's mostly done.
| Animats wrote:
| This would be less of a problem if Congress was more active at
| drafting and passing bills. We got into this mess because
| Congress stalled out.
| cryptonector wrote:
| Chevron arguably helped Congress shirk its responsibility.
| seaourfreed wrote:
| Cryptocurrency industry, will now innovate far more
| annoyingnoob wrote:
| Judges are appointed, not elected. Federal Judges receive
| lifetime appointments.
|
| This decision takes power away from elected officials and hands
| the power to appointed officials, officials appointed for life.
|
| Conservatives have played the long after to Roe to attempt to
| stack the courts with conservative judges. This is how we got to
| the Supreme Court that we have now.
| Invictus0 wrote:
| Congress is a mess because the country is a mess--the elected
| represent the electorate.
| karmasimida wrote:
| I would prefer less regulation than more, so this is welcome.
| jmyeet wrote:
| There's some interesting history here [1].
|
| Anne Gorsuch Burford was appointed by Reagan to head the EPA. She
| beleived federal regulations had become too onerous and the power
| of the administrative state had become too large. It was her
| mission to roll back environmental protections and gut the agency
| through reorganizations and layoffs.
|
| This did not go well. She ultimately resigned over a scandal
| where she withheld funds to help clean up a site to hurt a Senate
| campaign and lied about it. The Reagan administration eventually
| discovered the lie and I believe she resigned to avoid
| proseecution.
|
| The EPA under Reagan tried to limit clean air responsibilities by
| narrowly scoping what a "source" of static pollution is. The
| Natural Resources Defence Council ("NRDC") sued, in a case called
| Natural Resources Defence Council v. Gorsuch [2].
|
| Interestingly, the trial court judge was future Supreme Court
| judge Ruth Bader Ginsburg. The Court ruled against the EPA. That
| case was appealed to the Supreme Court as Chevron U.S.A., Inc. v.
| Natural Resources Defense Council, Inc [3].
|
| The Supreme Court reversed this decision and said that the EPA
| had the broad authority to define what a "source" was as policy
| and this become the basis for what we now called (or used to
| call) "Chevron deference". It's worth noting that SCOTUS at the
| time made what was then a pro-corporate and anti-environmental
| decision.
|
| Former EPA Anne Gorsuch Burford's son is Neil Gorsuch, current
| Supreme Court justice who voted to overturn Chevron deference and
| essentially avenge his mother, continuing her anti-government
| legacy.
|
| [1]: https://www.commondreams.org/views/2022/07/07/why-neil-
| gorsu...
|
| [2]: https://casetext.com/case/natural-resources-defense-
| council-...
|
| [3]:
| https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
| _DeadFred_ wrote:
| The conservatives in for some crazy awakenings with this. So many
| federal law enforcement practices that are super shady get
| handwaved away under the Chevron doctrine. I think this was a bad
| ruling as far as running a functional country goes, but a lot of
| shady stuff the government got away with is finally going to get
| stopped.
| rayiner wrote:
| The media's coverage of this as a "conservative win" is extremely
| misleading. This case is simply about whether agencies or judges
| should interpret what federal regulatory statutes mean. _Chevron_
| itself was written by five conservatives (and one democrat--with
| three other justices not participating) and overruled a decision
| authored by then D.C. Circuit Judge Ruth Bader Ginsberg. She had
| sided with an environmental advocacy organization in finding that
| the EPA 's interpretation of a Clean Air Act amendment was
| incorrect.
|
| _Chevron_ has always been a double-edged sword for both
| conservatives and progressives. In many cases, public interest
| advocacy organizations would much rather have judges deciding
| what laws mean than bureaucrats, because agencies tend to be
| staffed with industry people who are--while well meaning and
| operating in good faith--often veterans of industry and very
| sympathetic to it.
| shawndrost wrote:
| What an incredible coincidence that everyone -- the media, the
| judges who voted 6-3, and HN commenters like yourself -- sees
| this case along ideological lines!
| rayiner wrote:
| Every case is obviously going to be viewed through the legal
| of legal ideology. That's different from making it seem like
| it favors one particular political ideology. Liberals hated
| Chevron because agencies were generally less willing to push
| the law in their favor than judges. Under this ruling, they
| can go and sue in the ninth circuit and have liberal judges
| Decide what the clean air act means.
| mushufasa wrote:
| This is a complete disaster. The ramifications will be felt for
| decades. Now businesses must factor in the uncertainty of any
| random person launching a lawsuit that causes a local court to
| reverse a federal agency policy. Huge potential impacts to
| product / revenue, not just legal fees to fight everything. And
| immeasurable impacts of cowing all bold business decisions to
| avoid the ire of any person or group, no matter how niche or
| extreme.
|
| Even if a new supreme court reverts this decision, now people are
| going to be concerned about the unpredictability of the Supreme
| Court.
| tiahura wrote:
| How would a random person have standing?
| tstrimple wrote:
| Standing doesn't matter. A conservative website creator was
| able to take a case all the way up to the Supreme Court
| without ever have been sued. They just made up a situation
| where an alleged customer demanded they make a gay website.
| The customer never even existed. This is on top of the
| Supreme Court literally legalizing bribing of government
| officials across the country as long as the payment is made
| after the favor and not before. Then it's just a gratuity and
| not a bribe. The entire system is rotten at this point.
| avar wrote:
| That website creator sued their state's regulatory agency,
| and "sufficiently demonstrated both an intent to provide
| graphic and web design services to the public in a manner
| that exposes them to [Colorado Anti-Discrimination Act]
| liability, and a credible threat that Colorado will
| prosecute them under that statute."[1]
|
| Yes, the alleged "situation" may have been contrived, but
| that doesn't change whether they have standing to sue their
| state to challenge what they see as an unconstitutional
| law.
|
| Do you think their only recourse should be to break the
| law, and risk the penalties associated with that if it does
| turn out to be constitutional?
|
| 1. https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis
| erichocean wrote:
| > _now people are going to be concerned about the
| unpredictability of the Supreme Court_
|
| The Supreme Court has been reversing itself since the country's
| inception. I think we'll survive it making corrections in the
| future.
| genghisjahn wrote:
| All of us are random people.
| baryphonic wrote:
| I fail to see how this parade of horribles will happen. Under
| the Chevron regime, any random person could still sue, and
| provided that the lawsuit survived an initial motion to
| dismiss, then any questions involving an administrative agency
| policy would defer to that agency's interpretation of their own
| policy _and the law authorizing that policy_.
|
| The only change now is that the agency will have to demonstrate
| to an independent Article III court that its policy is correct
| and compatible with the authorizing law. _Stare decisis_ will
| still control the lower courts once new precedents are set, and
| people will have meaningful appeals again.
|
| There might be some disruption in the short term, but in a
| decade or two, I expect the new normal will be fine, but with
| the benefit that people can meaningfully appeal self-
| aggrandizing administrative state rulings.
| Gormo wrote:
| > Now businesses must factor in the uncertainty of any random
| person launching a lawsuit that causes a local court to reverse
| a federal agency policy. Huge potential impacts to product /
| revenue, not just legal fees to fight everything
|
| Businesses already have to deal with frequent litigation,
| including class-action lawsuits even in areas that overlap with
| regulatory agencies.
|
| Quite to the contrary of what you are suggesting, reversing
| Chevron doctrine will allow the courts to develop a body of
| solid precedent surrounding these areas of law, and create a
| _more_ stable legal framework, rather than the status quo of
| opaque, politicized agencies having the power to re-interpret
| their authority and change the regulatory environment at their
| own prerogative -- _stare decisis_ doesn 't apply to executive
| agencies, but it certainly does apply to the courts.
| sanktanglia wrote:
| oh yeah because our courts have definitely shown themselves
| to be non partisan, like how one of the republican supreme
| court justices thinks they are at war ideologically against
| the other side and must win
| idkwhatimdoin wrote:
| Except this and other rulings mean there's no such thing as
| "solid precedent" anymore.
| fullspectrumdev wrote:
| Can anyone speak to what this will mean for the ATF's
| "rulemaking"?
| chasd00 wrote:
| It means a judge can, if they so choose, decide if an ATF rule
| is lawful or not instead of the ATF itself always having the
| final say. Speaking of the ATF, it took a Supreme Court ruling
| to get ammonium perchlorate off the explosives list so model
| rocketry could continue as a hobby. With this ruling, a case
| like that wouldn't have to go all the way to the Supreme Court.
| This is a good thing.
| cryptonector wrote:
| They won't be able to stretch the law as much as they have at
| times. As the court's decision in Raimondo and the concurrences
| note, the court had already stopped using Chevron since 2016.
| Notably the court ignored Chevron last week when they decided
| that bump stocks are not machine guns -- if you read that
| decision it was all about the interpretation of "more than one
| shot with a single action of the trigger", which is precisely
| what the court would have deferred to the ATF on under Chevron
| and which it did not now.
|
| The scaffold of federal gun control (NFA etc.) remains
| untouched by Raimondo. Only ATF rulings regarding various
| technologies developed in the past 40 years will be affected,
| and probably not that very many. I doubt more than a very small
| handful of ATF rulings will be affected.
| dantheman wrote:
| Fantastic!
| kernal wrote:
| This ruling removes power from the executive branch and returns
| it to the state and to the people. How anyone could view this as
| a terrible thing is bizarre IMO. In what world is giving federal
| agencies wide powers to interpret laws and decide the best ways
| to apply them a good thing? That's a rhetorical question because
| the answer is it isn't.
| VincentEvans wrote:
| Congress can actually legislate the right of agencies to
| interpret the gaps in the laws back into effect - by passing a
| law that explicitly gives agencies this power.
|
| Just like congress can legislate abortion laws rather than
| leaving it to judicial precedence.
|
| Fundamentally there's nothing wrong with the position of supreme
| court to push the responsibility of lawmaking back on congress.
| sqeaky wrote:
| Fundamentally, people are suffering because the courts are
| acting for political expedience instead of doing and saying
| what's right and correct.
|
| Congress should get its Act together, but one group acting in
| responsible is not license for another group to act
| irresponsible.
| mjfl wrote:
| acting for political expedience? They are making heavily
| impactful, politically unpopular moves to correct what they
| believe to be long term errors buried in court precedent.
| autoexec wrote:
| > Congress can actually legislate the right of agencies to
| interpret the gaps in the laws back into effect - by passing a
| law that explicitly gives agencies this power.
|
| Congress can't actually legislate anything while it's held
| hostage by obstructionists and there's effectively zero chance
| that a bunch of republicans who want to dismantle the already
| inadequate regulations that keep entire communities from being
| poisoned will vote to remove their power to do exactly that
| through the supreme court.
| Mountain_Skies wrote:
| How did the obstructionists grant themselves that power?
| malcolmgreaves wrote:
| https://en.wikipedia.org/wiki/Gerrymandering
| cryptonector wrote:
| Gerrymandering is self-limiting. You can gerrymander to
| increase your party's number of House seats from your
| state, or you can gerrymander to make your seats more
| secure, but you can't do both! You can make some seats
| more secure while others weaker so as to strike a balance
| between these two goals, but you won't get as many seats
| as if you optimized for seat count and you won't get as
| many safe seats as if you optimized for seat safety.
|
| If you optimize for seat count then a wave election can
| easily turn many of those seats over to the other party,
| and with them control of the House.
|
| If you optimize for seat safety then a wave election need
| only turn over a few of your seats to switch control of
| the House.
|
| We have had lots of wave elections in the past 100 years:
| 1920, 1932, 1994, 2006, 2008, 2010. Three of those are in
| the past 20 years. Four in the past 30 years.
|
| Gerrymandering isn't all it's cracked up to be. It cannot
| make any party impervious to wave elections.
|
| This, anyways, only as long as all House districts in
| each state have roughly the same population.
| cyberax wrote:
| > Gerrymandering is self-limiting.
|
| It really isn't. It's self-perpetuating. A gerrymandered
| state might _eventually_ switch sides, but far more
| likely it'll become more red (and yes, gerrymandering is
| predominantly a Republican tactic).
| mistrial9 wrote:
| maybe that was true a while ago, but no, it is vigorously
| practiced by both US Democrats and Republicans in the
| modern age .. source: quantitative Census demography for
| urban planning
| cyberax wrote:
| That's 100% opposite of the current state. Historically
| Democrats and Republicans used the classic
| gerrymandering.
|
| However, now it's pretty much only Republicans who rely
| on computer-aided models to gerrymander the districts.
|
| There _are_ Democratic examples, and the worst ones are
| in Maryland and Illinois. But they pale before the
| Republican gerrymandering.
| autoexec wrote:
| It's true that both parties take part in it, however
| Democrats feel forced into it and would rather not.
| Democrats have repeatedly put forth efforts to end the
| practice. They have little choice but to play by the
| rules as they are until they manage to finally put a stop
| to it.
| cryptonector wrote:
| Between 1933 and 1995 we had sixty two years of Democrat
| party majorities in the U.S. Congress. That was before
| the Internet and back when the U.S. was less polarized
| than today. And the Great Depression and the New Deal
| left the Democrats very popular for decades. Today I
| don't see how gerrymandering could defeat wave elections.
| Democrat gerrymandering did not prevent 1994, and
| Republican gerrymandering did not prevent 2006 and 2008.
| cyberax wrote:
| That's because historical gerrymandering was not as
| severe as now. Modern gerrymandering uses computer
| modeling to slice minorities as thinly as possible,
| creating insurmountable barriers.
|
| Here's a nice overview: https://medium.com/rantt/the-
| top-10-most-gerrymandered-state...
| kelnos wrote:
| > _Gerrymandering isn 't all it's cracked up to be. It
| cannot make any party impervious to wave elections._
|
| I think the last 15 years of elections would seem to
| contradict you.
|
| My guess is that if gerrymandering were completely
| outlawed, Democrats would easily maintain control of the
| House, with a healthy margin, more or less permanently.
|
| Wave elections are a thing, but as we've seen, they don't
| give a the waved party a massive margin.
|
| > _We have had lots of wave elections in the past 100
| years: 1920, 1932, 1994, 2006, 2008, 2010_
|
| 2010 is a bit of a magic number, because that was the
| point when Republicans started their concerted,
| coordinated, country-wide gerrymandering campaign. So I
| don't think elections prior to then can support or refute
| any points about gerrymandering.
| cryptonector wrote:
| > 2010 is a bit of a magic number, because that was the
| point when Republicans started their concerted,
| coordinated, country-wide gerrymandering campaign. So I
| don't think elections prior to then can support or refute
| any points about gerrymandering.
|
| They already had done that, and they lost two big wave
| elections. (E.g., Texas redistricted in 2004.)
| throw0101b wrote:
| https://en.wikipedia.org/wiki/REDMAP
| indigo0086 wrote:
| Welcome to democracy, is it your first time?
| JumpCrisscross wrote:
| > _Congress can 't actually legislate anything_
|
| Did you miss the hundreds of billions of dollars of
| legislating the Congress did this year?
| autoexec wrote:
| Did you miss the part where I said " while it's held
| hostage by obstructionists"?
|
| When everyone is in agreement, congress is not being held
| hostage by obstructionists and some things can pass. When
| obstructionists are in disagreement, they can prevent
| anything from passing.
| oceanplexian wrote:
| > Congress can't actually legislate anything while it's held
| hostage by obstructionists
|
| That's a feature, not a bug.
| Dalewyn wrote:
| This. When the electorate is sufficiently divided or
| otherwise in the process of debate that there is no
| consensus, it is proper that the legislative bodies
| representing the electorate also likewise have no consensus
| with which to pass new legislation.
|
| Also, this feature also works the other way: If Congress
| were to pass, say, abortion guarantees or Chevron Deference
| into law, then good luck trying to get them repealed. See
| also Obamacare, which hasn't been repealed after it was
| passed despite hell being raised.
| hn_throwaway_99 wrote:
| Hard disagree. First, I'd say our system is more the
| exception that the rule. For example, most parliamentary
| systems don't take the "gridlock" approach, i.e. where
| you say "it is proper that the legislative bodies
| representing the electorate also likewise have no
| consensus with which to pass new legislation."
|
| Instead, they basically give the side that controls
| parliament the ability to pass legislation, and if they
| fuck it up, they can get thrown out and another party has
| their turn - this is essentially exactly what is
| happening in the UK with the Conservatives getting kicked
| out of power.
|
| The problem with this "eternal gridlock" is that, since
| Congress can't pass anything, basically the executive
| branch and the Supreme Court take over legislative roles,
| which I'd argue is worse. I.e. the executive branch makes
| a ton of executive orders, which if challenged get
| decided by the Supreme Court, basically leaving Congress
| out of it nearly entirely because that legislative body
| is so feckless.
| skywhopper wrote:
| Likewise Congress could clearly state that agencies are _not_
| allowed to interpret the gaps. If Congress was unhappy with how
| the executive branch was working, it could solve the problem
| easily and directly. So the Court, when making this decision,
| was not concerned about what's "right" or even Constitutional.
| It showed its hand by disrupting existing rulemaking that has
| been going on and explicitly allowed by the Court and
| implicitly granted by Congress for decades.
|
| Changing the status quo on a fundamental de facto government
| structure is not good judiciating.
| VincentEvans wrote:
| I am not surprised that conservative-leaning court has put
| their finger on the scale of what they always described as
| "activism of agencies" and "legislating from the bench" by
| pushing the congress to act - I see it as consistent with
| conservative principles.
|
| I am not saying I agree with it or condemn it - rather
| stating the path forward.
|
| I too would like congress to start acting the part. They have
| the tools.
| azemetre wrote:
| How do you expect Congress to legislate when one side
| refuses to legislate?
| VincentEvans wrote:
| Congress also possesses a variety of tools to limit
| obstructionism if it so desires.
|
| But a more important point - is that congress is a tool
| of democracy itself and is a reflection of the attitudes
| and desires of the populace. If populace no longer has
| the aptitude to apply its rights to elect the government
| that serves its interests - then it will experience the
| consequences of such negligence and learn from them,
| which is also its right.
|
| Refusing it that right is something much worse -
| authoritarianism when an individual or a group gets to
| pick winners or losers.
| kelnos wrote:
| I think that's a very simplistic, idealistic view of how
| the US government works. In reality, the populace is very
| limited in what changes it can make and which people can
| realistically become elected. Our electoral system,
| entrenched two-party system, as well as the prevalence of
| gerrymandering, all come together to ensure that.
| VincentEvans wrote:
| Well, that's just like, your opinion, man. (Big Lebowski,
| i think).
| Amezarak wrote:
| By winning clear majorities, either "side" can do
| whatever it wants, including changing all the
| House/Senate rules to pass laws with simple majorities.
| watwut wrote:
| They are fine with activism and activists themselves. They
| just want the activism to go their political opinion
| direction. It is not even subtle.
| CivBase wrote:
| > Changing the status quo on a fundamental de facto
| government structure is not good judiciating.
|
| Isn't the fundamental structure that the legislative branch
| writes laws, the judicial brand interprets laws, and the
| executive branch enacts/enforces laws? That's what I was
| taught in school.
|
| I don't doubt that this is a political move to shift power
| from a liberal presidency to a conservative supreme court.
| But to me it seems like a case of the right thing done for
| the wrong reason.
| kolbe wrote:
| This isn't actually clear. The duty to legislate arguably
| cannot be transferred... even with legislation.
| VincentEvans wrote:
| Valid point! I'd like to hear more regarding this concern.
| While I don't necessarily view what I referred to as
| "interpreting the gaps" as synonymous with "legislate", IANAL
| and would appreciate professional opinion here.
| cryptonector wrote:
| The court decided this on statutory grounds because that's what
| this court likes to do: base decisions on the narrowest grounds
| possible. But it mentioned Marbury quite prominently and it's
| pretty clear that the court will not sustain a law that
| codifies Chevron.
| VincentEvans wrote:
| Can court override the power of congress to put Chevron into
| law? Have there been instances where court struck down a law
| passed by congress before?
| chasd00 wrote:
| i don't remember my government class exactly but i think
| the purpose of the us supreme court is to determine if a
| law is constitutional or not. I'm not sure if it can
| explicitly strike down a law but declaring it
| unconstitutional would be effectively the same.
| bumby wrote:
| > _i think the purpose of the us supreme court is to
| determine if a law is constitutional or not._
|
| Interestingly, the ability to declare a law
| un/constitutional is not an enumerated power given to the
| court by the Constitution. The Supreme Court declared
| that power for itself in _Marbury v. Madison_ and people
| have just went with it ever since.
| goodluckchuck wrote:
| It's not really a separate power. Courts express their
| understanding of the law. Some laws are statutes, some
| are the constitution itself. If there are conflicts then
| the court will express its opinion on which is
| authoritative. What the Executive and Legislative
| branches choose to do after the fact are things those
| branches may do.
| JumpCrisscross wrote:
| > _the purpose of the us supreme court is to determine if
| a law is constitutional or not_
|
| No, it's to decide cases and controversies [1]. Deciding
| on constitutionality flows _from_ that.
|
| This case, for example, was decided more on the
| Administrative Procdures Act than on the Constitution.
|
| [1]
| https://constitution.congress.gov/constitution/article-3/
| kelnos wrote:
| If they believe Chevron is unconstitutional, sure. And
| there's certainly an argument for it on separation-of-
| powers grounds.
| cryptonector wrote:
| The court will be very zealous of its power (from 1803, in
| Marbury v. Madison) to decide that laws are
| unconstitutional, so yes, if the court things a statutory
| codification of Chevron is unconstitutional, they will so
| rule.
|
| However it's also very unlikely that Congress will pass
| Chevron into law, and the text they might write might be
| narrow enough to pass constitutional muster, so until then
| this is a purely academic question.
| pas wrote:
| sorry, can someone explain this to someone who gave up on the
| article at the first bullet point, nor had enough sleep (and
| so is too lazy to look up everything)
|
| thanks!
| kelnos wrote:
| Long ago Congress passed laws delegating a lot of
| rulemaking authority to the executive branch, the idea
| being that Congresspersons and their staff aren't deep-
| knowledge experts in most fields, and a lot of detailed
| rulemaking is best left to non-partisan career government
| employees (which, however, are usually guided by partisan
| political appointees, unfortunately). This is potentially
| dicey where the constitution is concerned: one of the
| foundational principles of the US constitution is
| separation of powers, and giving the executive branch what
| is essentially legislative power is maybe not in line with
| that.
|
| But Congress did it anyway, and the SCOTUS has over the
| years upheld it. There was a landmark court case involving
| Chevron (the oil company). SCOTUS ruled there saying that
| the executive branch agencies responsible for rulemaking
| are experts in their fields, and we should mostly defer to
| them when their position seems reasonable, and when
| Congress hasn't passed a law that contradicts what they
| want to do.
|
| Marbury is a much older case, that made precedent the idea
| that courts have the ability to strike down laws that they
| believe violate the constitution.
|
| The current conservative-leaning SCOTUS is skeptical of
| what conservatives call the "administrative state"
| (basically: rulemaking done by the executive branch). They
| seem to not be a big fan of "Chevron deference", and are
| fully willing to exercise their Marbury-affirmed power to
| strike down executive actions that they don't believe are
| constitutional, or don't believe directly stem from laws
| Congress has passed.
| wahern wrote:
| I think this misses an important distinction. The issue
| here isn't the extent to which Congress can delegate
| rule-making authority to executive agencies. Those bounds
| haven't been moved. The issue is how how much deference
| courts are to give agencies when deciding when an agency-
| made rule reasonably adheres to the purpose and function
| of a statute. In theory the degree of deference shouldn't
| matter--agencies' retain the same rule-making authority
| and flexibility as before--but as a matter of process it
| absolutely does.
|
| SCOTUS invented the Chevron doctrine because it believed
| at the time courts were too quick to second-guess the
| logic behind agency rule making, and in doing so
| unnecessarily and improperly inserting themselves into
| technical debates as well as broader political debates.
| IOW, the court was primarily concerned with people using
| the courts to subvert executive prerogatives and
| electoral politics. The concern now, apparently, is that
| administrations are using agency flexibility to subvert
| electoral politics.
|
| Then and now, by moving the threshold for when courts can
| second-guess federal agencies, it's effectively altering
| the rights and responsibilities between Congress and the
| President, as well as between those two institutions and
| the electorate more broadly.
| surfaceofthesun wrote:
| It seems that congress is much quicker and more willing
| to correct overreach by the executive branch through
| legislation compared to overreach by the judiciary --
| especially at the Supreme Court level.
| bonzini wrote:
| It's worth noting is that at the time the EPA's position
| was _in favor_ of Chevron, while the agencies right now
| tend to be a lot less corporation-friendly (hence the
| need to overturn the precedent, some say).
|
| Also worth noting is that the head of the EPA at the time
| was Anne Gorsuch, mother of Justice Neil Gorsuch.
| matrix87 wrote:
| > Fundamentally there's nothing wrong with the position of
| supreme court to push the responsibility of lawmaking back on
| congress.
|
| One could argue, similarly to overturning Roe, they're
| diverging from a very critical precedent which is going to
| trigger a flurry of lawsuits over the next couple years
| jkic47 wrote:
| That was actually addressed on Page 7 of the decision.
|
| They begin with "The stare decisis considerations most
| relevant here--"the quality of [the precedent's] reasoning,
| the workability of the rule it established,..." and proceed
| to find the considerations "all weigh in favor of letting
| Chevron go"
|
| https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
|
| If you read the decision on abortion, you will find they
| spend significant time arguing that stare decisis
| underpinning Roe v Wade is not valid.
| philips wrote:
| Arguing stare decisis was invalid when the reasoning behind
| even hearing the case is ideological was necessary- it
| essentially is the only reasoning they could make.
| rpmisms wrote:
| In both cases, the court used the "They were flat wrong"
| argument to quite convincingly overcome stare decisis. We
| have a small-c conservative court, and they're going to make
| the government sing for its supper, which is what public
| servants are supposed to do, so good.
| granzymes wrote:
| I liked this section of Justice Gorsuch's concurrence:
|
| > How bad is the problem? Take just one example. Brand X
| concerned a law regulating broadband internet services. There,
| the Court upheld an agency rule adopted by the administration
| of President George W. Bush because it was premised on a
| "reasonable" interpretation of the statute. Later, President
| Barack Obama's administration rescinded the rule and replaced
| it with another. Later still, during President Donald J.
| Trump's administration, officials replaced that rule with a
| different one, all before President Joseph R. Biden, Jr.'s
| administration declared its intention to reverse course for yet
| a fourth time. Each time, the government claimed its new rule
| was just as "reasonable" as the last. Rather than promoting
| reliance by fixing the meaning of the law, Chevron deference
| engenders constant uncertainty and convulsive change even when
| the statute at issue itself remains unchanged.
| fzeroracer wrote:
| But fundamentally, how is this different than what the
| Supreme Court does? The Supreme Court interprets the
| constitution and its meaning as it relates to whether or not
| a law is constitutional. The overturning of Roe v Wade is the
| direct result of the current court saying 'actually, the way
| we previously interpreted the constitution was wrong'.
|
| We've gone through significant uncertainty and convulsive
| change as a result of the Supreme Court throwing out decades
| of precedence. This isn't to say this is always a _bad_
| thing, but the reasons for their past few decisions do not
| pass muster.
| anigbrowl wrote:
| It's not. I think this actually flips a lot of power back
| to the judicial branch in the short term, which is
| significant because federal judges enjoy lifetime
| appointments. Of course, Congress has the power to look at
| unexpected or perverse-seeming judicial outcomes and
| legislate accordingly, but the legislative process is
| typically slow and subject to various sorts of bargaining;
| a rather corruptible process.
| kelnos wrote:
| I agree with Gorsuch's overall point, but he's also writing
| it knowing full well that today's Congress is not equipped to
| do all that rulemaking, and not equipped to agree on and pass
| the huge volume of legislation that would be necessary to
| duplicate all that rulemaking within the legislative branch.
|
| And he's ok with this, because his political ideology is such
| that fewer regulations and less rulemaking is a good thing.
|
| Ultimately Congress cannot take on all of the executive
| branch's current rulemaking authority without some huge
| changes to how the body works. Those changes will not happen,
| because conservatives _don 't want_ these rules.
| wwweston wrote:
| If his complaint is the back-and-forth, this is certainly a
| look-in-the-mirror moment for Gorsuch and the present court,
| who've sure made their own notable contributions to whipsaw
| governance dynamics lately.
|
| If his complaint is that there's an executive discretion in
| executing the law or the expectation should be that
| congressional force only goes as far as its ability to write
| micromanagement into statute then it's hard to restrain from
| making "do you even constitution bro" or "who are you and why
| are you wearing that robe" remarks.
|
| (Of course, in representative government, not only elections
| but agency and judicial appointments have consequences, so
| while it it may be inconsistent for justices to exercise that
| privilege for themselves while arguing away the right of
| another branch to do the same, it is not that big of a
| surprise, and it is _entirely_ consistent with a philosophy
| _based_ in elitist privilege for some that is likely behind
| much of today 's ruling among others.)
| s1k3s wrote:
| Where I'm from, our "supreme court" can overthrow congress
| legislation for not following the constitution. Is this the
| case here AND is this the case in the US (generally speaking)?
| CapitalistCartr wrote:
| Yes, that's exactly how it works. The US Supreme Court can
| rule a law unconstitutional, and that's that.
| r00fus wrote:
| Little known fact: Congress can actually legislate around
| that by removing the possibility of judicial review from
| the law itself.
| staticman2 wrote:
| Congress cannot do that.
| Gormo wrote:
| Little known, I suspect, on account of being entirely
| false.
| JumpCrisscross wrote:
| > _on account of being entirely false_
|
| Congress can absolutely limit judicial review by statute.
| (It can't remove it entirely.)
| r00fus wrote:
| This is exactly what I meant, and is described in this
| pdf: https://crsreports.congress.gov/product/pdf/R/R44967
| westurner wrote:
| Shouldn't that require a Constitutional Amendment?
|
| Such a law would bypass Constitutional Separation of
| Powers (with limited privileges and immunities) i.e.
| checks and balances.
|
| Why isn't the investigative/prosecutorial branch distinct
| from the executive and judicial branches though?
| JumpCrisscross wrote:
| > _Shouldn 't that require a Constitutional Amendment?_
|
| No, Article III SS 1 explicitly vests judicial power "in
| one supreme Court, and in such inferior Courts as the
| Congress may from time to time ordain and establish" [1].
|
| > _Why isn 't the investigative/prosecutorial branch
| distinct from the executive and judicial branches
| though?_
|
| What do you think executing laws means?
|
| [1] https://constitution.congress.gov/constitution/articl
| e-3/#ar...
| s1k3s wrote:
| So basically it's the same as here, the supreme court
| (which is appointed, not elected) has power over elected
| officials?
|
| (Because they can decide what is constitutional or not)
|
| Edit: I have more questions but for some reason I can't
| reply to your replies :(
| JumpCrisscross wrote:
| > _the supreme court (which is appointed, not elected)
| has power over elected officials?_
|
| In a well-designed system, both have power over each
| other. That is certainly true in the United States.
| pbhjpbhj wrote:
| >I have more questions but [...]
|
| There's throttling to prevent rapid back-and-forth
| commenting as that can devolve somewhat; might be that.
| Try clicking the "X minutes ago".
| edmundsauto wrote:
| The US Supreme Court can decide what is constitutional,
| and Congress can amend the constitution that is the basis
| for the USSC decision (with 2/3 vote).
|
| With the current makeup of Congress, it is unlikely so
| the USSC holds significantly more effective power than if
| it had a functioning Congress.
| kelnos wrote:
| US Congress cannot amend the constitution. State
| legislatures must ratify constitutional amendments.
|
| The two-thirds threshold you mention is for Congress to
| _propose_ amendments.
| kelnos wrote:
| Right. But the elected officials can vote to remove
| members of the supreme court (or federal judges in
| general), though the bar for doing so is set very high.
| And the supreme court can't remove elected officials. So
| the supreme court's power over elected officials is not
| absolute.
|
| The idea in US constitutional law is one of balance: we
| have three branches of government, and each are granted
| powers that can act as a check on the powers of the
| others. It's far from perfect in practice, but the intent
| is good, I think.
| zer0zzz wrote:
| Except that the congress has been in a rut where it defaults to
| nothing of substance getting achieved
| kelnos wrote:
| > _Congress can actually legislate the right of agencies to
| interpret the gaps in the laws back into effect - by passing a
| law that explicitly gives agencies this power._
|
| Congress has already done that. Conservatives don't like that,
| calling the result the "administrative state". A very strict
| interpretation of the constitution could suggest that Congress
| _cannot_ actually delegate legislative powers to executive
| branch agencies, and the conservative members of SCOTUS are
| (unfortunately) free to take up that interpretation.
| hn1986 wrote:
| This is a net negative for US citizens
| mjfl wrote:
| I think it's good that courts will no longer have to defer to
| federal agencies granting themselves powers "because we say so."
| This will stop mission creep of the federal regulatory agencies
| and correct a long term error in court precedent. The Supreme
| Court is doing its job.
| BurningFrog wrote:
| The best argument for this is the "separation of powers" one.
|
| In the system of Thursday, regulatory agencies can be "both
| judge, jury and executioner", ordering people to do whatever they
| want, since that's how they choose to interpret their mandate.
|
| Power like this can and will be abused, even if it's true that
| the agency has the best expertise in the area.
|
| It also makes it very dangerous for those who are abused to
| complain publicly, since they can arbitrarily be found in
| violation of the law as retribution.
|
| This is no way to live, and the system of Monday should be
| better, even if it may be confused and cumbersome for a few
| years.
| knodi wrote:
| Nothings is getting through congress... so we're fuked.
| tomcam wrote:
| > The Supreme Court on Friday curtailed the executive branch's
| ability to interpret laws it's charged with implementing, giving
| the judiciary more say in what federal agencies can do.
|
| That is one way to view it. Another way is that legislation
| should be left to legislators.
| rpmisms wrote:
| FINALLY. Chevron is the bedrock of bureaucracy, and it provides a
| layer of opacity. It's fundamentally anti-democratic and anti-
| republic--note the lack of capitalization.
| gnicholas wrote:
| Fun fact:
|
| > _Ironically, it was Gorsuch's mother, former EPA Administrator
| Anne Gorsuch, who made the decision that the Supreme Court upheld
| in 1984._ [1]
|
| 1: https://apnews.com/article/supreme-court-chevron-
| regulations...
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