The Chevron rules says that if a law is ambiguous, courts should defer to any reasonable interpretation of the agency charged with enforcing it. Jonah Goldberg doesn't like this:
The question of whether the judicial or the executive branches should be the final word on regulatory policies misses the elephant in the room: Congress should be the first word.
If Congress wants to pass a law requiring fishermen to pay for monitors on fishing boats it can. Likewise, it can pass laws to forgive student debt, legalize marijuana, clarify free-speech issues for social media, provide amnesty for illegal immigrants, build a border wall, and a thousand other things.
But it doesn’t. Instead, Congress does one of three things: 1) Nothing at all 2) Write deliberately vague legislation punting hard decisions to Cabinet secretaries and administrators or 3) Lobby the executive branch to do things Congress is too cowardly to do itself.
This is a common complaint, and there are times when it has some force. But I think it mostly misses the point. The problem isn't that Congress is cowardly. The problem is that the world has long since become far too complex and fast changing for Congress to write detailed laws that stand the test of time.
Take, for example, the massive financial reform act passed in 2010. It was a thousand pages long, and even so it took a full decade to create the detailed rules implementing it. There's no way Congress could ever have done that. It's not just lack of expertise, it's the fact that even for experts it took ten years.
This is why the Supreme Court in 1984 adopted the Chevron rule unanimously. Unanimously! And just consider what it means that Congress nonetheless delegates so much authority to rulemaking agencies. It means that both parties are willing to let the executive branch make rules regardless of who controls the White House. There's no way this would happen unless they were absolutely convinced there was no other way.
And there isn't. Federal laws are already inhumanly labyrinthine and complex. It defies common sense to believe that Congress could pass even more complex laws that foresee every possible twist and turn of time and tide. Giving authority to federal agencies isn't a betrayal of its duty; it's just Congress bowing to reality.
Once you accept this, you need only decide what to do about all that rulemaking. Should courts generally defer to Congress's express desire to delegate it to the executive branch? Or should they insert themselves into every petty controversy de novo? Your mileage may vary, but I think the question answers itself.
Isn't that why we have a legislative and administrative branches that are co-equal?
Indeed the Legislative is in certain fundamental ways superior, in that it can limit the discretion of the Judiciary (says so right in Teh Constitooshun). Congress could pass a law saying "thou shalt defer, in this matter and others," and the courts would have to abide by it.
The problem, of course, is that the Legislative is effectively paralyzed. Majorities in the House are tiny and fleeting, and the Senate will not allow itself to function on major matters absent a majority of 60 or more, which doesn't happen today either, so there are few limits on the Judiciary (other than perhaps budget, but even then they get to decide what they get to decide), and power, like nature, abhors a vacuum.
Should courts generally defer to Congress's express desire to delegate it to the executive branch? Or should they insert themselves into every petty controversy de novo?
Ah but you misunderstand. The point definitely is NOT for them to "insert themselves into every petty controversy," because that would increase the workload on the Judiciary by at least an order of magnitude, and they don't want that any more than anyone else.
The point is for them to "insert themselves" ONLY into controversies instigated by those wealthy enough to bring suit or to effectively blackmail others into not bringing suit by threatening to bankrupt them with legal costs. The point is to make sure that the mechanisms of government function only for those with sufficiently deep pockets and not in the interests of the general public where those might stand in the way of, say, profits.
This is why I expect the cases to be decided 5-4 or 6-3 in favor of the "fishermen." Roberts is a Made Man of the corporate class, and Barrett knows well which side of the bread the butter is on. This case, and not Dobbs, is really what the Federalist / Republican stacking of the judiciary has been about all along.
+1
Another example would be the shrieking about AI regulation. The tech sector (really just the tech Bros capital) is positioning itself as cartel for future technology.
I think you are correct, but, thanks to the very intentional massive increase in inequalities of income and wealth, reversing Chevron would release a torrent of lawsuits from big business and the FIRE sector that would overwhelm the courts. The Supremes may have to rule quite narrowly just to preserve their off-time to hobnob with their rich patrons.
Not to worry. The Money Boyz will select only the finest, most topical, and most legally sweeping cases, flavored with honeysuckle and cardamom, to take to the Supremes. And they will suggest, and no doubt receive in return, equally sweeping opinions, which subsequently will suffice to direct lower courts to do as should be done.
As in all such regimes, the point is not to compel people to do as they should, the point is to make people realize what they should do, in which case there is no need for compulsion at all!
Additional problem is that he executive is "unitary", i.e. headed by a single elected person (I am ignoring the VP, they don't have much authority). Since the executive is so large now and so influential, it really needs to be controlled by more than one elected individuals.
The fact that the constitution makes this impossible without an amendment is a serious defect.
I am not aware of many democracies where this problem would not exist. The closest is likely Switzerland where the president is nothing more than the chairman of the 7-person government and where the presidency rotates among the seven on a yearly pace. But even there one person is at the top at any time.
The question is what the person at the top can or cannot do.
In the UK, for example, there is always a prime minister, but the parliament can remove it from today to tommorow without any deep reason.
In France there is a directly elected president, but domestic matters are handled by the prime minister and his/her government, which can be dissmissed by the parliament (national assembly) on plain political disagreements.
A powerful single person as the president of the US is not that common.
Well-said, Kevin! If you've ever read the text of even a simple, focused bill, the futility of trying to elaborate on details is obvious. And if you've seen the daunting work of even trying to get a bill drafted, getting it through Legislative Counsel, and then getting committees to even look at it, let alone mark it up, you can see even more clearly how ridiculous this demand is. It's a big, complex country requiring an almost infinite array of specialized experts to make anything happen. I hope these SCOTUS justices will see that.
I think the point that these Cons are trying to make is that they do not want any regulation that is complex enough to require delegations. They don't want any regulations at all, to be honest, but handicapped useless ones are the best alternative.
Exactly the point for a lot of conservatives. Depending on how you view it, they want to be free to do whatever the hell they want to make more money and not be burdened by having to follow no stinkin' rules. They would describe it more, I think, from the Libertarian perspective that that we as a society should maximize choice and freedom and that the market will prune back the abuses and rules slow growth and reduce prosperity. (not a fan of Libertarianism myself... it should be one of those things that you outgrow in college as you see that the world is complicated...)
"handicapped useless ones are the best alternative."
I think they like handicapped useless ones better because then it looks like they oppose poisoning our air and water when in fact they don't.
On balance, I agree with Kevin and support the continuation of Chevron deference.
However, I also recognize Chevron deference has the potential for overreach. In the case at hand, Loper Bright, the rule required fishing boats to "carry" regulators. The operative agency budget was insufficient to pay the aforementioned regulators, so they decided that carry ALSO means the fisherman must pay the salary of the regulators. 1) deciding who pays the salary is NOT an issue of an agency being expert on the subject matter. 2) a plain reading of the text, to me, would not mean that carry = pay for.
So yes, agencies can use Chevron to formulate rules that exceed the likely intent of the original law.
... and then the administration (it was the Trump administration iirc who decided the fishermen must pay the regulators) reversed itself and said, yeah, you're right, you don't have to pay them, AND they refunded money the fishermen had already paid. So agencies can overreach, but they can also self-correct. Not everybody gets everything exactly right the first time.
BUT ... the Federalists pursued the case anyway, even though the matter had been mooted, because they really aren't interested in the fishermen. They saw an opportunity to strike at Chevron, and they knew perfectly well that there were at a minimum four, and likely 5 or 6, Justices who were salivating to do so. That's the point, not some fishermen.
(BTW, why do people keep falling for the Republicans' "common man" shtick? Oh the Family Farmer, the hard-working fishermen, the plucky rancher. Puh-LEEZ. It's Big Agribusiness, industrial fishing combines, and major resource-exploitation companies they represent. These fishermen are just fronts.)
bbleh - agreed on the Loper Bright case: this should probably be moot and not before the Supreme court.
Rather, I discussed the Loper Bright case because, as you mention, agencies can overreach. And some of the agency rule making is not, being honest, about who is the subject matter expert.
To be clear, I hope the Supreme does not overturn Chevron.
Somebody (maybe at Slate?) recently wrote that this was not only moot because the agency had reversed and recompensed, but those actions meant there was no injury, therefore no cause of action at all, so by its own rules the court shouldn't have taken it up. But it isn't the only case they've taken up lately that lacked either a harm or a party with legitimate standing. They really are hot on running their agenda, aren't they.
The solution is simple
The top level "law" should always start with a "Purpose Statement" and should be SHORT - just a few pages
Then the detailed "regulations" should be made by the agencies - with the "Purpose Statement" always in view
"The top level 'law' should always start with a 'Purpose Statement' and should be SHORT - just a few pages
Then the detailed 'regulations' should be made by the agencies - with the 'Purpose Statement' always in view"
1) Laws almost always DO start with a statement of purpose.
2) Whether or not the agencies always do keep the purpose statement "always in view" is beside the point. Chevron is a test for evaluating agency action. If it's contrary to the plain meaning of the statute, then it's vacated. If the statute affords more than one reasonable meaning (as words often, often do!), then the agency action just has to comport with one of them. In this way, the courts show deference to the expert agencies AND their democratically elected presidential overseer, rather than the alternative, which would be the unelected lifetime appointee judges just deciding themselves, where the statute is ambiguous, if the regulation is something they subjectively like.
3) Beware anybody peddling "simple" solutions to complex problems. They are generally wrong.
Sounds exemplary in theory. But if you look at the actual text of most laws, they read like gobbledygook-- because what laws mostly are is a list of revisions and amendments and interleavings to various sections of the US Code, which is the unified compilation of federal laws that pulls them all together in one place in topical sections. (Those cryptic references prosecutors make when they charge people like trump and his "hostages" with crimes are to sections, sub-sections, paragraphs, etc, of the US Code.) Legal codification has been needed for the same reason libraries need cross-referenced catalogues.
Here's a recent law I picked at random (well, it's near the top of the list) from the public laws section of congress.gov: https://www.congress.gov/118/plaws/publ34/PLAW-118publ34.htm. It wouldn't pass a simple-language test, but then I don't think most laws either could or should do that.
BTW, I think most regulations *are* fleshed out with a law's purposes in mind. Rule-making can be really complex and usually gives stakeholders a lot of chances to get their oars in, so it can be hard to do end runs around congressional intent. I believe GOP administrations have tried that more than Ds have, and the Rs also have tended to slack off enforcement of existing regulations they don't like, which is another way regulations can be evaded. Check @Camasonian's comment, which I got to after I posted this.
If SCOTUS takes Chevron down, it will be fascinating to see how the AI regulatory laws turn out! Hand me some popcorn!
In my former life I actually used to write fishing regulations for the National Marine Fisheries Service, including observer regulations such as those that generated this lawsuit. Although my region was the North Pacific and Alaska.
What is also missed in this discussion is that the Federal rulemaking process is VASTLY more transparent and subject to comment and input by constituencies than Congress. Every agency that writes a regulation goes through proposed and final rule notice-and-comment rulemaking accompanied by all manner of analytical requirements (environmental impact statements, economic analyses, etc. that have their own comment opportunities. Agencies often hold public hearings that accommodate testimony in addition to receiving written comments.
So by the time any final rule is published, it has gone through tremendous review and public notice and comment. Legislation in congress does NONE of that. It often appears in the dead of night attached to some appropriations rider.
Also it is vastly easier for agencies to write revised rules in response to problems and issues that arise, than it is for Congress to revisit/amend legislation.
+1
Actually +2 or +3, because several good points.
It seems pretty simple, any congressman should be able to add a chevron rule overreach to an annual bill and any rule changes that pass become law. If they can't pass then the rules the executive branch is using becomes the equivalent of legislative law...
I feel like Goldberg, and many other commenters are missing a basic point of Chevron.
The ruling says if the law is ambiguous defer to the rulemaking agency.
If Congress didn't want the desired interpretation, they could amend the act, or have put in a specific exclusion. Granted, they aren't going to anticipate everything.
However, Chevron does not make the bureuacrats win over Congress. It just says, "If the law is ambiguous, courts don't get involved."
That's actually a conservative position. That's "c"conservative with a small "c". The "conservatives" on the bench - at least some of them - would be delighted to be activist judges and legislate from the bench, just as long as they get things their way.
If the rulemaking helps our side, don't get involved. If it hurts our side, intervene. It's called "originalism."
Thanks for this. I don't recall details but I believe that when Chevron was decided, it was viewed as a win for the then-conservatives-- what was being upheld was a Reagan administration interpretation of a statute that the D congress intended to be broader. In fact, wasn't Scalia a big fan of Chevron deference?
What you don't want is to go back to the 1890s when a lot of SCOTUS rulings were basically tables of the specific rates they'd allow railroads to charge for carrying specific goods between specific points.
It isn't appreciated today, particularly by the legal-theory interests behind this case, just how much of that kind of burden got lifted from the courts when we created administrative agencies to handle administrative questions. Maybe it's just our fate now to relearn lessons from 140 years ago.
If you think the laws enacted by Congress are "complex" you ought to see the detail of the accompanying regulations! And then the various ANSI and other standards!
Moreover, as Camasonian points out, rule making and standard setting are more open AND have more expert input than anything Congress pumps out. As it should. Congress has little to no technical expertise in today's world. Heck, Congress is totally clueless about how the female reproductive system works, other than the entrance point(s).
I dread what the reactionary revanchist cave men (and woman) of the High Court are going to do with this decision. The Defendant set this country back 50 years; how much worse will their ruling on "Chevron" be?
----
Oh, just an aside about the technical acumen of government, yesterday's NPR talked about the N2 execution of some poor benighted convict. They were so distressd that no doctor would give any opinion, because "doctors heal, not kill." Well, DUH!! If you want to find out the effects of breathing pure N2, ask a safety person, an industrial hygienist! They are intimately familiar with respiratory hazards and unbreathable atmospheres.
Also, the jailer's concern that a little of the N2 might escape the prisoner's mask and get out to kill bystanders in the immediate area... do they teach nothing in Alabama?
I'm a science teacher and I was screaming my radio listening to the dipshits they had on acting concerned about N2 gas leaking out and contaminating the execution chamber. Have the not ever taken a science class? What percentage of the gas in every breath they have ever taken in their life is N2? Answer, 78% because our atmosphere is 78% N2.
N2 is an inert gas that does nothing. We breathe enormous quantities of it every day. They aren't killing anyone with N2. What they are doing is giving them a gas mixture of zero O2. However since it is the CO2 in your lungs that triggers the breathe or gasping reflex, breathing pure N2 will simply suffocate without triggering the gasping reflex. You body just shuts down due to lack of oxygen without you knowing it. At least that is the theory. I don't know that it has ever been tested on people.
I guess we're about to find out. Dr. Mengele, please be seated, the Great State of Alabama is stepping up!
It has been accidentally tested on people. I'm aware of fatal industrial "accidents" where people without breathing gear have entered rooms that, for one reason or other, had been filled with pure nitrogen. Apparently, such people keel over after a minute or so without ever noticing there is a problem; they could, in most cases, have left the room if they felt like it, but didn't. The bodies do not show any sign that the deceased were feeling any distress before they died.
N2 might escape
yeah, can't have toxic n2 fumes poisoning the atmosphere
What do other countries do, that should make it pretty clear. I'm assuming Canada and New Zealand are a lot more capable and efficient than India or Nigeria.
(Cross-re-posted from another of Kevin's posts. App must be having a bad day. Edited.)
The less Congress tells them, the more the agencies wonder, question, and fumble. The more Congress tells them, the less it will itself accomplish. Agencies wind up doing a huge amount of the work of creating regs, *with oversight from Congressional Committees*, or more usually, their staffs. Goldberg does not get this; Drum does.
IMO it's already pretty much done how people think it ought to be. I say this as a 20+-year employee of the Federal government, who only worked a few years putting together just one section of a field-level Director's Order. It ain't the picnic some people seem to think, and I sure learned a lot about how it works.
Congress passes the broadest statements of its intent that will narrow the effect to what it desires. Some call that "vague' or "ambigous." It's only that Congress has other things to get on with. The narrower the law, the more detailed it has to be, and the less likely it is to cover every contingency, and the more likely that something else will be crowded off Congress' plate.
Agencies put together and publish regs to cover all the activities under that umbrella, and any one statement can affect myriad activities, and every one of them must be considered and dealt with to match Congress' intent, AND the Constitution, AND laws already in effect.
Congratulations for the title of this post. Absolutely spot ton.