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Supreme Court overturns 40-year-old "Chevron deference" doctrine

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Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#601
post #564

Earlier quoted context omitted.

> 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 th…

>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…

> 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.

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#602

Earlier quoted context omitted.

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…

> 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…

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.

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#603

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?

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 i…

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 ¯\_(ツ)_/¯

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...

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#604

Earlier quoted context omitted.

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…

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.

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.

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#605

Earlier quoted context omitted.

> 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 th…

> 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.

I was going to comment this as well. Somehow we as a country managed to get by before 1984.

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#606
post #451

Earlier quoted context omitted.

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…

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 everyth…

>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.

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#607

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…

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Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#608
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.

Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine

#609

Earlier quoted context omitted.

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 fed…

> 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 th…

Nothing in this decision prevents regulatory agency rulemaking.

Nothing in this decision "guts" the agencies.

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