January 17, 2024
"Judging from questions in two hard-fought arguments that lasted a total of more than three and a half hours, the fate of a foundational doctrine of administrative law..."
"... called Chevron deference appeared to be in peril.... Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts...."
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Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts...."
Sounds good to me!
Let's Go Brandon!!!
John Henry
"It would also transfer power from agencies to Congress and the courts...."
He says that like it's a bad thing…
Heaven forfend, Congress would have to grow a pair and stop hiding behind ambiguity.
The perspicacity of precedent in principles in lieu of principals, with a forward-looking motive of capital and control, leads to a foundation of follies.
A foundational doctrine of administrative law that is at odds with the Administrative Procedure Act. Transferring power from bureaucratic agencies to "Congress and courts" i.e., the Constitutional branches charged with enacting laws and interpreting them. The only regulations that would be struck down are those inconsistent with the law under which they were supposedly adopted. And which Congress is free to amend to validate. But I suppose that's the problem for Progressives: the whole purpose of the modern permanent bureaucracy is to empower "experts" who know better than people and their elected representatives.
Actually, I'm surprised that Jack Smith hasn't invoked Chevron deference in his criminal cases against Trump. After all, aren't the DOJ and FBI experts in understanding the interpretation and scope of federal criminal law?
If the Administrative State wanted Chevron preserved, they had to avoid — knowingly! — pushing junk science the way NOAA does with global warming and NIH and CDC pushed lockdowns and cloth masks and social distancing during the COVID-19 pandemic. They also had to avoid trying to expand their mandate through dubious means, the way EPA did with the definition of “wetlands.”
Yeah, lets talk about Liptak's "seminal precedent,"
"It [getting rid of Chevron] would also transfer power from agencies to Congress and the courts...."
Really, when did it leave,
"All legislative Powers herein granted shall be vested in a Congress of the United States ...," with the emphasis on ALL.
I hate the term "seminal," which is overused in legal writing. First, not every leading case is novel enough to be characterised as "seminal"; and second, I prefer not to have "semen" in my memo. If you look at a Google Ngram, you can see frequency explodes after WWII, and is constantly on the rise right up to the present. I think it's a function of the slovenly rhetorical and mental habits of the bureaucratic-legal managerial culture that emerged to dominate the US after the war.
My personal bugaboo.
It would also transfer power from agencies to Congress and the courts...."
Well, yeah, that's the point, and the constitutionally required result.
Congress should have to vote with regular bill procedures to approve every regulation the executive branch writes when trying to implement previous legislation- all in separate bills, though it would be up to Congress itself to decide whether or not regulation bills can be bundled. Turn every proposed regulation into a bill and pass it or don't pass it in Congress. This nonsense that the executive branch gets to basically write and enforce laws, which is what all the regulatory code is, is dangerous and leads to exponential increases in the numbers of regulations that rule our lives today.
Nothing SCOTUS decides on this term is more important than this case in regards to the growth of the federal government's power. Make Congress do it's fucking job and overturn Chevron.
Could be a real step in returning to a government "of the people".
Congress critters serve at the people's pleasure (or, frequently, ignorance). Either way, it's a founding principle.
Administrative law has nothing to do with the will of the people. It's all about expanding government and the rule of "experts".
stop!
I can only get so erect!
I’m so sad.
Gorsuch was at the top of his game, particularly when asking the Solicitor General her views on Chevron's disparate impact to the little guy - the individual citizens - the immigrant, the disabled vet, the social security beneficiary - who have no power to capture an agency, and whose plight the voters might never know.
It was emotional and persuasive. It is hard to tell over the audio, but it seemed to me that the courtroom got particularly quiet as he forcefully championed the little guy against the administrative-regulatory bullies.
On the other hand, Kagan - champion of the bloated bully state, apparently - kept referring to Congress rightfully deferring to the expertise of the Administrative Agencies.
1. Oh, yes! The "experts" in the Agencies. You know the ones, the folks shielded from normal rules of job performance but who can wipe out your business with a new statutory interpretation rendered 30 years after the statute, that they hadn't ever seen before, but that somehow floated from the skies above Wichita to Washington DC the moment the new administration came in after an election. Those experts.
2. If congress doesn't itself have the ability to gain the necessary "expertise" on a subject matter, why is Congress then feeling competent to pass any legislation at all, on the matter. How about we actually require Congress to be competent, gain expertise, and do their jobs?!
Paul Clement was also on his game. Speaking like a true statesman. How to run our particularly configured democratic republic. The SG was just fighting to prevent the loss of Executive Branch power. Gorsuch tied her in a knot several times, in my hearing.
He sounds like he is worried and, knowing Liptak, he probably is worried. But it is a mystery to me how someone could say "It would also transfer power from agencies to Congress and the courts" and not immediately recognize that that is the correct outcome in a democracy is a mystery to me.
"It would also transfer power from agencies to Congress and the courts...."
The power to write laws originates in Congress, and only resides in agencies to the extent Congress explicitly delegates that power to an agency for the purpose of filling in the details by issuing regulations. Without a delegation from Congress, agencies have no law-making powers.
This understanding of our constitutional division of powers has been, for years, corrupted by agencies eager to seize the reins of power on everything, Congress be damned. They have overreached.
The Courts are not trying to take the power away from agencies in order to enhance the power of the Courts. Rather, they are clarifying that the power to make laws never belonged to the agencies without express delegation, that it belongs to Congress, according to the Constitution.
If Congress chooses not to legislate on a particular topic, then that's that; we have no law on that topic. The Dems have acted as if that gave the executive branch the right to do what Congress wouldn't, but that's not the way it works.
This is how you rein in the Deep State, where power resides in the bureaucratic fiefdoms of Washington DC, beyond the reach of electoral accountability.
This correction by the Supreme Court is absolutely essential for a limitation on the runaway powers of the Administrative State and the Uniparty's ability to escape accountability for the damage they are inflicting.
Libs concerned.
Good.
They can't kill Chevron soon enough.
I appreciate Quale's report, but would like to learn more about the arguments and the justices' interactions and reactions. Where can I find more?
"corrupted by agencies eager to seize the reins of power on everything, Congress be damned. They have overreached."
"Rather, they are clarifying that the power to make laws never belonged to the agencies without express delegation,"
Let's not forget that Congress allowed it to happen and is probably more than happy that it did happen. It relieved them of having to actually write and vote on laws that were precise and took a position that was controversial and could lead to a primary challenge.
And there is a Constitutional limit to Congress' delegation of power.
Gee, how horrible!
Congress will actually have to write laws, and teh Executive branch will be limited by the written law!
Note: if you have a problem with that, YOU are the problem.
If your preferred "solutions" can't survive that, your "solutions" are crap and shouldn't be implemented.
Anything that drains our monstrous administrative state of power, revenue, personnel, respect, and prestige is fine by me.
After the approaching civil war is concluded, the Constitution of America 2.0 should specify that there will be a mandatory yearly tax refund of any and all Federal revenue that exceeds 5% of GDP, not counting government spending, except in time of declared war.
I heard “seminal precedent” and I thought “Bill Clinton”.
All rule making should be subject to a two-step process:
1 - Agency X comes to Congress and says we need regulations for Y and why. Congress authorizes the development with a budget.
2 - The regulations are created, public comment, etc. Congress then approves them as law. Non-action is the same as disapproval. Six months for approval.
No administrative law courts. Any challenge to a particular application is paid by the agency.
"It would also transfer power from agencies to Congress and the courts...."
Where it belongs. How about raking the Administrative Law Judges from all Federal agencies into an actual Article III court? They could still be specialists in various areas but they would not be under agency control and the agency heads would not be prosecutor, judge, and jury.
"Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts...."
About damn time.
Tom Wolfe smiling somewhere.
It's just so on brand that Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc - the case that gave us the Chevron Deference - was decided in 1984.
"Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts. . . ."
You mean: to where the Constitution placed the actual power in the first place.
Anything but that!
"The power to write laws originates in Congress, and only resides in agencies to the extent Congress explicitly delegates that power to an agency for the purpose of filling in the details by issuing regulations."
I know political critters would prefer to avoid being held accountable for their actions, but still- how about Congress doing the "filling in the details" before voting on a law? Leaving that up to an agency sounds an awful lot like having to vote for a law in order to find out what's in it.
"Discarding it could threaten regulations in countless areas ...".
In Soviet Amerika, regulations threaten you!
If a law is ambiguous shouldn't it be declared unconstitutional so it can be sent back to Congress to be rewritten to take out the ambiguities?
--- I prefer not to have "semen" in my memo. [Balfegor]
Interesting that the use of the word rose in some relationship to the weakening of the thing itself.
Oh no Congress would have to legislate to create laws.
What Tim Maguire said at 3:11. It wouldn't transfer it would return the power to those who supposed to wield it. I can understand the congress critters wanted to slough off this responsibility as it gives them more time to raise money from the lobbyists. Heaven forfend.
It also threatens a structural instablity that gives rise to the deep state.
Delaware courts have pointedly refused to give Delaware agency or board regulations the Chevron treatment in deciding the validity of state rules or regulations. Some have been tossed and others upheld. The world did not end, at least at this relatively local level.
Less regulatory agencies and their unconstitutional regulations= More freedom
If we strip unelected bureaucrats of power and force the Legislative Branch to legislate, Our Democracy is in danger.
If we strip unelected bureaucrats of power and force the Legislative Branch to legislate, Our Democracy is in danger.
The courts can only do so much to cover for a broken political system. Americans need to vote responsibly if they want a functioning country.
These cases are about the judicial branch checking and balancing alleged overreach by the executive branch into legislation. The executive branch has felt it necessary to legislate, though, because the legislative branch isn’t doing its job. The Supreme Court ends up being the venue for these showdowns, but the problem starts on the other side of 1st Street NE.
Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts.
I accept these terms.
Shouldn’t the power be in the hands of elected officials and not unaccountable bureaucrats?
When did Gary Trudeau become a courtroom sketch artist?
These are not serious people arguing for continued deferment to government ‘experts’ after that Sam guy what stole dresses.
I heard “seminal precedent” and I thought “Bill Clinton”.
I would like to hear Joe Biden try to say "seminal precedent".
I double-dog-dare his speechwriters to put it in his next address.
End Chevron now, then eliminate the massive and unconstitutional expansion of sovereign immunity and revise New York Times vs. Sullivan to limit the "actual malice" standard only to those holding public office rather than to the nebulous and unworkable "public person" standard that various judges pulled out of their butts, and we'd really be getting somewhere.
(Not holding my breath, though).
Oh, noes! If we deny unelected, unelected bureaucrats the ability to write regulations (which have the force of law), to enforce them with their own, often heavily armed police forces, and try accused violators in their own courts whose judges are agency employees, why Our Democracy! Is in mortal danger! Untold thousands of bureaucrats could lose their jobs while Congress would be forced to do theirs. Why, that’s just crazy talk!
Blogger Rich said...
...The executive branch has felt it necessary to legislate
The executive branch might "feel" many things, but legislation is not one of its constitutionally defined powers.
"Shouldn’t the power be in the hands of elected officials and not unaccountable bureaucrats?"
Should be, but neither elected officials nor the bureaucrats want *that*.
The Chevron Rule is an abomination. Why shouldn't there be a rule of lenity in administrative cases just as much as in criminal law? Any ambiguity must be resolved in favor of the person or entity being regulated, and against the agency.
The courts can only do so much to cover for a broken political system. Americans need to vote responsibly if they want a functioning country.
Lefties think the system is broken if they cannot get every outcome they desire.
They want the "experts" in the regulatory agencies to have more power than elected officials, unless of course the elected officials are all Democrats and RINOs.
Did we learn anything from our bureaucrat experts during the Covid crisis?
@Quayle - 1. Oh, yes! The "experts" in the Agencies. You know the ones, the folks shielded from normal rules of job performance but who can wipe out your business with a new statutory interpretation rendered 30 years after the statute, that they hadn't ever seen before, but that somehow floated from the skies above Wichita to Washington DC the moment the new administration came in after an election. Those experts.
I enormously enjoyed reading that. Well done!
Every government employee from call me lt colonel Vindemen to hamas supporting gen z desk squatters thinks they are in charge of government policy. It is exactly right that regulations shift each election cycle as the newly ensconced political party uses regulation, not congress to implement preferred goals.
As a party establishes power the chevron rule slices finer and finer until regulations become a parody of original intent. It is the superpower of the deep state.
The trick is that you can hire an expert to testify to anything, and one expert is as good as another in the eyes of chevron.
tim maguire said...
He sounds like he is worried and, knowing Liptak, he probably is worried. But it is a mystery to me how someone could say "It would also transfer power from agencies to Congress and the courts" and not immediately recognize that that is the correct outcome in a democracy is a mystery to me.
You appear to not understand that the Democrats and the Left do not value "democracy" (the people voting, holding elected officials accountable, etc), they only value "Our Democracy" (rule by the Left, esp. via gov't bureaucrats).
Your issue is that you're trying to assume that any of those people have even a shred of morals, ethics, or human decency. They don't
Rich wrote:
"The executive branch has felt it necessary to legislate, though, because the legislative branch isn’t doing its job. The Supreme Court ends up being the venue for these showdowns, but the problem starts on the other side of 1st Street NE."
The executive branch extends its power because the people in it like to use that power- there nothing even approaching beneficence it its doing so. Even if Congress narrowly tailored its laws, the executive branch would still write regulations outside those narrow confines using the Chevron deference as the tool to do so. If the executive branch were doing its job, they would not write regulations that are not explicitly mandated by the legislation- the executive would simply tell Congress that if it wants a different set of regulations, it needs to be more explicit. This is why the Chevron deference needs to be overturned- the prevent the executive branch from acting as a Congress unto itself.
SCOTUS is exactly the correct venue for these "showdowns"- it needs to tell the executive branch that it does not get to legislate just because Congress has failed to write legislation to "solve" whatever problem it is people like you think Congress is ignoring, and thus not doing its job.
Prof. M. Drout @7:12p.,
Sounds like a good morning's work. And then, after lunch, we can overturn Griggs v. Duke Power and Reynolds v. Sims.
Now we're getting somewhere!
If I recall correctly, Steve Hayward at PowerLine has remarked several times that conservatives initially *liked* Chevron because it shifted some regulatory power from Congress, when it was nearing the end of the long period of Democrat control from 1930 to 1994, to the Executive agencies that were more likely to respond to Republican presidents.
I found this at Powerline from Paul Meringoff (I think about this case) that makes pretty clear that it's more later extensions to Chevron that are the bigger problems
1) Continuing to defer to the agency when the agency's own rules are ambiguous
2) Allowing agencies to write, enforce, and interpret their own regulations
Some deference to agency regulation is necessary but the defererence needs to end once the regulations are written with appropriate notice and comment. The interpretation should shift to real Article III courts at that point.
Without explicitly including reducing the powers of the DOJ and FBI, none of this will matter.
Agencies have pushed to ban internal combustion engines with no law behind it. Local cops ignore the law on civil asset forfeiture and takings (like when cops go to wrong house and destroy it or when a local gov doesn't like someone and changes the zoning on their land). The whole censorship (Facebook twitter) stuff was extra-legal. Getting banks to squeeze payday loan, pot shops, and gun shops--without legal basis. We have been gradually getting gangster government.
I prefer not to have "semen" in my memo. ....
I think it's a function of the slovenly rhetorical and mental habits of the bureaucratic-legal managerial culture that emerged to dominate the US after the war.
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could also be that they are jerking off disparaging on the citizenry and 10A >> 'you got no rights retained'
I love Scalia, but he was so wrong on Chevron.
Bring back the non-delegation doctrine!
the fate of a foundational doctrine of administrative law...
THis, BTW, is total bullshit.
Chevron was decided in 1984. The current "administrative law" binge started with the New Deal in the 1930s.
It might be "foundational" to an illegitimate explosion of executive power. But I thin ought that was supposed to be a bad thing?
Or is it that it's a "bad thing" only when there's a Republican President?
It isn't just write, enforce, and interpret their own regulations, it is that they agencies are police, prosecutor, judge, jury, executioner over their regulations. Sort of like a HOA crazy lady but with the power of the federal government behind them.
Not as huge a deal, either way, as some people think. Before I retired, I spent four decades writing district court briefs defending federal regulations, both before and after Chevron. More often than not (granted, not always), I wasted as little space as I thought I could get away with writing about Chevron.
It's counterproductive. You drone on about some hypertechnical stuff about step one and step two and shred hairs on how much ambiguity is required for something to be ambiguous. All for what point? To tell the judge that she has no choice but to rule for the agency.
It's usually much better to explain what the facts are, what the problems are the agency is trying to address, and why the agency was right dammit. Make the judge WANT to rule for the agency. Chevron (unlike Skidmore, which I loved working with) doesn't guide the arguments and discussion in those directions.
"The executive branch might "feel" many things, but legislation is not one of its constitutionally defined powers."
One of the benefits of leftism is that when the Constitution suits your purposes, you can solemnly quote it and when it doesn't, you just ignore it.
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