Earlier quoted context omitted.
Congress can still delegate chevron style. They just have to explicitly do so
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 bef…
Supreme Court overturns 40-year-old "Chevron deference" doctrine
571–580 of 1001 posts
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#572From 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…
>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 opaq…
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.
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#573Earlier quoted context omitted.
> 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.
> 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.
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#574Earlier quoted context omitted.
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.
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.
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#575From 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…
That’s not constitutional.
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#576Earlier 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…
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 ca…
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?
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#577Earlier quoted context omitted.
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.
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.
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#578Earlier quoted context omitted.
"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 cri…
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.
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#579Earlier quoted context omitted.
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.
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 memb…
Re: Supreme Court overturns 40-year-old "Chevron deference" doctrine
#580Earlier quoted context omitted.
>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 opaq…
> 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 wr…
If Congress is unhappy with how this plays out, they're completely free to clarify any sections that get challenged.