May 1, 2023
"The Supreme Court on Monday said it would take up a case that could do away with a decades-old precedent that tells judges to defer to federal agencies..."
"... when interpreting ambiguous federal laws, a deference long targeted by conservatives concerned about the power of the administrative state.
As the Supreme Court has become more conservative, the justices have grown less likely to defer to federal agencies under the 1984 precedent in Chevron U.S.A. v. Natural Resources Defense Council. But lower courts are bound to rely on the precedent because the Supreme Court has never officially renounced it.
A split panel of the U.S. Court of Appeals for the D.C. Circuit used the Chevron doctrine in deciding the case the Supreme Court added to its docket Monday: whether [the National Marine Fisheries Service] can force herring fishermen off the coast of New England to [pay the salaries of the] federal monitors [that the Magnuson-Stevens Act requires them to make room for on board]...."
Subscribe to:
Post Comments (Atom)
Posts
37 comments:
As the Supreme Court has become more conservative, the justices have grown less likely to defer to federal agencies under the 1984 precedent in Chevron U.S.A. v. Natural Resources Defense Council.
What decision WaPo didn’t like is it citing as an example of this lack of deference?
That such a thing even existed in the first place is anathema to the checks and balances placed in the constitution to begin with. If you want to find out where the rot set in for the USA, start looking at just these types of 'accepted' precedents.
It's shit like this that allows ATF to turn bumpstocks into machineguns and the EPA to hammer farmers in the Southwest with retention basins on their land. End this crap.
To defer to federal agencies under the 1984 precedent in Chevron U.S.A. v. Natural Resources Defense Council is to allow the government 100% control with no recourse.
THIS IS WRONG
Constitution says only CONGRESS can make laws, not agencies.
Regulations have the same effect as laws. Criminal and civil penalties. Hence they are laws.
The Judicial system interpret the law, not the government agencies. If the law is so unclear they cannot figure it out.. then strike the law down!
If Chevron is reversed or scaled back in a significant way, that's nearly as big as overruling Roe and Casey.
Phillip Hamburger wrote a book on the administrative state and Scott Johnson at Power Line read it and loved it.
This would be huge. The Deep State loses some of its power.
That case where JP Stevens deferred to the EPA and found that carbon dioxide was a "pollutant" cost us trillions of dollars.
"... when interpreting ambiguous federal laws, a deference long targeted by conservatives concerned about the power of the administrative state"
There's a ready answer to this issue,
"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."
A federal agency ain't Congress.
Okay, Members of the USSC, you took an oath to follow that language.
The whole problem could be solved or at least ameliorated if the Congress would pass laws that more explicitly lay out Federal agencies’ authority to resolve the issues. I realize this is heretical because it would decrease the regulated industries’ ability to influence the shape of the regulations and would force Congress to think about the impact their actions have on the economy and the public. The way the system works now, Congress can say it is not their fault, so vote for me!
Time to put Congress back to work!
And if Congress is unwilling or unable, that should be a signal the proposed rule isn't that necessary.
Then you have every state and their agency administrative rules.
Bureaucrats all the way down.
Good ! This is far more important than Roe.
The overruling of Chevron would be as beautiful and amazing as the overruling of Roe. Cause for rejoicing. Hasten the day.
I've recently heard of two situations in which the deferral to federal agencies has caused problems particularly when the regulation seems ambiguous. In one case, a bush pilot attempted to land at off-airport location, during the attempt the pilot decided the location was not suitable for his aircraft and conditions and opted not to land, but an onlooker decided to claim the pilot was showboating and reported him to the FAA. The FAA guidance for off-airport landing specifically states that pilots should make an attempt to minimums, assess the situation, then decide to land or go-around. The FAA is saying in this pilots case, that had he landed anyway, he would not be under-investigation, but because he did go around, his intentions for going around are in question. Because the courts deter to the FAA, the pilot is unable to present facts and seek judgement, and instead the investigation continues.
In another case, admittedly at a state level, a doctor has been investigated 6 times for potential malpractice because an anonymous person claims he made false statements about medical care. The particular issue is statements made by the doctor in regards to Covid that compared it to influenza and suggested treatment for some (not a particular patient) could be similar to treating other flu like symptoms. This is a popular opinion, but not a politically acceptable opinion during the pandemic. The regulatory agency investigating him has cleared him 4 of the 6 times, suspended the investigation the 5th time, and then brought back the 5th claim and added a 6th. During the investigation, the doctor asked for a clear description of minimum standard of care, as that seemed to be the point of inquiry, and the regulators could not provide him a definition.
In both of these circumstances, a court trial could have ended the dilemma faced by the accused. However, the deferral to the agency to clear up its own ambiguity has lead to these individuals being stuck in years long investigations without final resolution.
"defer to federal agencies...when interpreting ambiguous federal laws"
The deference was only one step in the long-term prog project of increasing state power and prog control of that power. Partly for that reason, many federal laws were kept deliberately "ambiguous." The administrative state is an exercise in postconstitutional collusion between the branches, just as the original progs envisioned. But do the so-called conservatives have the guts to undo the monstrosity?
A conservation of states of jurisdiction in our constitutional model that forego past, present, and progressive pretenses to democratic, dictatorial, and royal institutions.
It should be overturned. Congress needs to be forced to do a better job writing explicit legislation.
I'm so democratic I wish the Supreme Court would bring back the non-delegation doctrine.
Congress has the power to write laws.
Not the president.
And certainly not unelected bureaucrats working under the president.
People who worry about an "imperial presidency" and too much power in the hands of one person...
you know, what used to be called "democrats"
should rebel at all those federal administrative laws issued by unelected bureaucrats.
it's not "liberal" vs "conservatives"
or even "republicans" vs "democrats"
it's statists vs libertarians
it's truly up to the states to write administrative laws, health inspections and all that stuff
the non-delegation doctrine is deeply federalist
but it's even more populist, libertarian, and congruent with both democracy and a republic
Getting rid of Chevron is a start, but what would be truly sweet is to reintroduce the non-delegation doctrine, and really whack that administrative state (a.k.a. the swamp). And, unlike the fights over the commerce clause, I don't believe there was historically big fights over the doctrine. (So no big stare decisis concerns). Nor can we call it a Supreme Court power grab, since the doctrine would only shift power from the article 2 branch (historically thought to be the most dangerous) and move it back to Congress.
I recall my Administrative Law prof in 1993 teaching Chevron and the mischief it created by allowing the legislature to write crappy laws and leave the Code of Federal Regulations to fill in the gaps/create and impose new substantive legal requirements that suited the fancy of the regulators in the executive branch. 30 years later (40 years after Chevron) SCOTUS might correct the mistake. Lotsa mistakes getting corrected, maybe.
Next Duke Power !
Agree this could be huge. And unlike Dobbs it will not ignite a firestorm among a significant voting bloc. Suburban women will crawl over ground glass to protect unlimited abortion, but who exactly can even understand what a repeal of Chevron would mean at a personal level, let alone feel motivated to organize resistance to the decision? A bunch of NGOs would care, sure; some activists would wet themselves, yes; but significant, sustained, effective political blowback?
Congress needs to revoke all rule-making powers from the agencies. The agencies can testify before Congress on why a new regulation is needed and what it should generally accomplish. But, Congress must write the rules into law.
All administrative courts should be dissolved and replaced with Article III courts.
Start with the EPA and the so-called Consumer Protection agency.
Start with a 50% Reduction in Force, an 25% pay cut and an 8-year limit on Federal employment.
I would look forward to the USSC getting involved in this case. Trimming the wings of the bloated Federal Bureaucracy is long past due. But the second half of the problem is our elected Congressmen, many of them avaricious, duplicitous sh*tweasels, and their long-standing complacence for preferring faceless bureaucrats with party alignment who act with impunity, as they trample all over the rights and property of tax payers - who find that there is no accountable party to file grievances against. See 'IRS, Lois Lerner' for one ready example or virtually any public interface activity with the EPA.
I was hoping Althouse would cover this. Gets all the lawyers geeked up about Chevron.
Overruling Chevron isn't enough (though it would help). SCOTUS needs to reinstate a non-delegation doctrine. If it's a law, it has be enacted by the processes set forth in the Constitution. Agencies should be limited to executive functions only - no legislative functions, no judicial functions.
I was the chief attorney for a statutory interpretation issue on an appeal from a federal agency rulemaking order decades ago. Reading the Circuit Court of Appeals' opinion on the issue, I thought we were clearly going to win. Then I flipped the page and got to the last paragraph - but Chevron deference, and my client lost.
FWIW, my client's loss due to Chevron have cost people across the country billions of dollars and continues to cost them millions each year. My client and others like it didn't absorb the financial burden of the rules that were upheld. Each of them passed the costs of the rules - plus the costs of their administration - directly to their customers. Effectively, the result of Chevron deference was a higher tax rate being imposed by agency decision for the last 25 years and counting.
This is a good idea. If Congress wants Agencies to do something, Congress should Legislate it.
OMG. The Supremes want to restrain the Administrative State. The World Government in not going to allow that. Court Packing cometh.
After Roe was overturned last year, a leftist complained that the court turning the issue over to each state’s elected representatives was a “threat to our democracy”. He believed that unelected and unaccountable judges making such rulings were “democratic”, but actually having elected representatives do so wasn’t. That isn’t democracy by any definition of the word. If Chevron is overturned, I’m sure he’ll consider it even less “democratic” by his skewed definition of the word. We’ve lived for generations in a country where the Constitution only means what a majority of supreme court justices say it means, actual text notwithstanding. Striking a blow against the massive administrative state (which is the true federal government, not the 537 elected politicians in DC) would be a far more important ruling that overturning Roe. Some of these agencies, such as the IRS, not only write the regulations, they have their own enforcement agents and courts. So much for the separation of powers specified in the Constitution. If Chevron is overturned, it might actually force Congress to do it’s job instead of hosting endless hearings. Perhaps they could start with writing the budget and the corresponding appropriations legislation before the start of a new fiscal year. When was the last time they even passed a budget, much less doing it on time?
wild chicken said...
"Then you have every state and their agency administrative rules.
Bureaucrats all the way down."
Every state does. And the federal agencies can and do arbitrarily change state rules.
Aggie @ 6:55: won’t these sad sacks in Congress be forced to leave off the sh*tweaseling if Chevron goes away and they are —at long last— required to craft legislation that isn’t just a stack of virtue-signaling “whereas’es” and a bunch of blanks where the agency makes up whatever it likes, being so very expert ‘n’ stuff?
If the required statute is, instead, literate, complete, comprehensible and directive —an actual piece of executable code—won’t that force these time-servers to shape up or ship out?
We can dream, can’t we?
To relieve the nausea which erupts when contemplating "Chevron" or "Wickard", I peruse a few subreddits. E.g. R/machinists. I like to spend time in the company of folks who make the civilized world happen.
Next case: ending this "Pen and a Phone" bullshit where Executive Orders can't be challenged by Congress.
Who EXACTLY gave SpongeBrainShitPants the authority to alter mortgage rates based on income?
Or to propose nationwide bans on ICE cars? Gas stoves? Mandate military vehicles be EV?
(Just think of Russia's 40-mile tank and APC convoy into Kiev early in 2022. Stuck because it ran out of gas. So...how the FUCK would hugely heavy EV-powered, short-range tanks deployed at the front get more energy?)
Madness.
Striking a blow against the massive administrative state (which is the true federal government, not the 537 elected politicians in DC) would be a far more important ruling that overturning Roe.
Yeah, I'm so worried about people getting shot in the streets over Chevron.
"Die, you pro-Chevron bastard!"
It's like some nitwit in the 19th century going, "Oh, sure, some silly people are yammering about Dred Scott. But the really important case is McCulloch v Maryland.
Whole fucking civil war over here about slavery, and you're waving your McCulloch flag.
"It's outrageous! It's outrageous! This is what we should be fighting over! Chevron deference!"
I believe, because I'm a human being, that more people are going to be upset about stabbing babies in the middle of birth.
Have you ever stabbed a baby in the middle of birth? Have you ever seen a baby stabbed in the middle of birth? How do you feel about that? Are you oblivious to this?
I know lawyers and professors and other pointy-headed academics sometimes get their head up their ass and become passionate about some arcane theory. But you still have to take Criminal Law, right? I assume you've heard about this thing called homicide. Wouldn't it be kind of dumb, as the whole class is upset about a baby murder, for you to raise your hand and say, "Why are we talking about this? Chevron is far more important."
Of course people get into silly arguments about holocausts vs slavery vs infanticide vs rape, and all the awful things that human beings do to each other. It's pointless to rank atrocities. But whatever the fuck Chevron is, do you know what it's not? An atrocity.
Michael K,
"Next Duke Power"
Yes!!! And after that, Reynolds vs Sims.
Of course Chevron should go. Think of it this way: It's like an administrative version of the rule of lenity -- any ambiguity in the law must be resolved in favor of the citizen, not the f****** government.
The problems with Chevron are half political (as above, strategically twisting words to fit an agenda and avoid Congress), and half a function of bumbling bureaucrats. In government, one agency often doesn't know what other agencies are up to and can fall behind in best practices or never be aware of lessons learned through outside failures. They also focus on government methods and ignore the evidence available from private organizations.
But, each bureaucratic manager wants another win to facilitate a promotion. They also have no sense of cost-benefit calculations because they are fully and thickly protected from negative feedback via decisions by committees, have no risk of losing their jobs, and are often paid far beyond their skills or contributions.
See the Peter Principle, and the Wall Street Analyst who tore apart the SEC for lack of technical expertise in its failure to detect Bernie Madoff's pyramid scheme.
https://en.wikipedia.org/wiki/Peter_principle
https://en.wikipedia.org/wiki/Harry_Markopolos
Fred Drinkwater said...
"To relieve the nausea which erupts when contemplating "Chevron" or "Wickard", I peruse a few subreddits. E.g. R/machinists. I like to spend time in the company of folks who make the civilized world happen."
They keep tearing things down and wonder why they have to pass legislation to force people to build it back up.
Saint Croix said...
Striking a blow against the massive administrative state (which is the true federal government, not the 537 elected politicians in DC) would be a far more important ruling that overturning Roe.
Yeah, I'm so worried about people getting shot in the streets over Chevron.
Are you really that ignorant?
Whole chunks of the Administrative State get shut down is going to be a far bigger deal than having to travel two States away in order to kill your baby.
I promise you the people running the Democrat Party will be FAR more pissed by the end of Chevron than they were by Dobbs
Greg, I'm pretty sure St Croix is referring to the rank and file NPCs that form the shock troops of the left. I'm sure The people running the Democratic party will try to rile them up, and we'll know to have some success... But I and probably St Croix expect them to have a lot less leverage regarding Chevron because it just doesn't have the emotional handles that killing babies does.
Post a Comment