Bye-bye Chevron

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Agencies need to do less

Congress needs to do more.

Congress writes laws that provide the framework and parameters. But they leave the specifics of implementation up to agencies, through rulemaking. Rulemakings have to be within the scope of the statutes enacted by Congress. It would be ineffective for Congress to micromanage that, not to mention that Congress lacks the subject matter expertise to do so.

If only it worked that way in reality.

The present cases involve a law where Congress isn't and hasn’t been funding enforcement for decades and so NMFS implemented its own rule for funding it. I understand the nobility of the cause here. But, at the very least, the courts should NOT be deferring to the agency on how to fund enforcement. Or are you people really arguing that we need to defer to subject matter experts on funding enforcement?

Suppose a local police force didn't have adequate funding for paying their police officers. So, they decided that in order to adequately fund their police force, they would simply charge each resident of their district a fee every time a police officer was called.
That is similar to what is happening here.

We don’t even have to suppose! We’ve seen this in its nightmare form. Ferguson, MO, shows us what happens when those who execute the laws take it upon themselves to create their own revenue to fund such enforcement.

I’m guessing that all the administrative law dictators in this thread have zero desire to defer to the subject matter experts in the Ferguson, MO police department.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Agencies need to do less

Congress needs to do more.

Congress writes laws that provide the framework and parameters. But they leave the specifics of implementation up to agencies, through rulemaking. Rulemakings have to be within the scope of the statutes enacted by Congress. It would be ineffective for Congress to micromanage that, not to mention that Congress lacks the subject matter expertise to do so.

If only it worked that way in reality.

The present cases involve a law where Congress isn't and hasn’t been funding enforcement for decades and so NMFS implemented its own rule for funding it. I understand the nobility of the cause here. But, at the very least, the courts should NOT be deferring to the agency on how to fund enforcement. Or are you people really arguing that we need to defer to subject matter experts on funding enforcement?

The agency is still required by law to perform enforcement on fishing quotas to protect the fisheries industry as a whole against depletion from overfishing. First Congress by defunding, and now potentially the Courts, are removing the agency's ability to do the job that they are mandated by statute to do. That seems like a gross judiciary overreach to me, and it goes against the statutes which mandate enforcement. A much better alternative would have been to allow some alternative mechanism for enforcement. Just striking down the ability of agencies to implement the laws that are on the books would be major malfeasance by the courts.

There have been cases where states or advocacy groups or others have sued the government to compel it to do the job it's mandated to do. I can see something like that happening.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Agencies need to do less

Congress needs to do more.

Congress writes laws that provide the framework and parameters. But they leave the specifics of implementation up to agencies, through rulemaking. Rulemakings have to be within the scope of the statutes enacted by Congress. It would be ineffective for Congress to micromanage that, not to mention that Congress lacks the subject matter expertise to do so.

If only it worked that way in reality.

The present cases involve a law where Congress isn't and hasn’t been funding enforcement for decades and so NMFS implemented its own rule for funding it. I understand the nobility of the cause here. But, at the very least, the courts should NOT be deferring to the agency on how to fund enforcement. Or are you people really arguing that we need to defer to subject matter experts on funding enforcement?

Suppose a local police force didn't have adequate funding for paying their police officers. So, they decided that in order to adequately fund their police force, they would simply charge each resident of their district a fee every time a police officer was called.
That is similar to what is happening here.

We don’t even have to suppose! We’ve seen this in its nightmare form. Ferguson, MO, shows us what happens when those who execute the laws take it upon themselves to create their own revenue to fund such enforcement.

I’m guessing that all the administrative law dictators in this thread have zero desire to defer to the subject matter experts in the Ferguson, MO police department.

The correct fix would be to provide funding to go along with everything that Congress mandates. There are already way too many unfunded mandates in government.

[Anonymous]

Anonymous wrote:

Anonymous wrote:This is a reaction to liberals taking advantage of Chevron to write laws without a vote of Congress, calling it an interpretation of a law to which the courts must provide deference.

Previously when they lost at the Supreme Court the EPA bragged it was too late the changes had taken effect and couldn't be reversed. This caused the Supreme Court to throw out the Clean Power Plan with a stay before the case could be heard.

Chevron came about due to a change by Reaganite Republicans at the EPA to make it easier for polluting factories to make changes to a factory without having to get explicit permission from the EPA.

Literally, it was FedSoc lawyers in the Reagan Administration who argued for the Chevron deference.

Now? Those same FedSoc lawyers want to undo the standard they helped create.

It's absolutely incredible and gob smacking. Chevron has nothing to do with "liberals." It was a creation of Reaganites who wanted to ease regulations on polluters.

Yes, created by Republicans, I think written by Scalia, but the current situation is from liberals misusing the deference. Take a look at California's AB5, essentially banning gig workers. Democrats tried to pass it as the PRO Act, and it didn't pass with many Democrats opposed. Now Biden and California's Labor Secretary Su are implementing it as a regulation.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Agencies need to do less

Congress needs to do more.

Congress writes laws that provide the framework and parameters. But they leave the specifics of implementation up to agencies, through rulemaking. Rulemakings have to be within the scope of the statutes enacted by Congress. It would be ineffective for Congress to micromanage that, not to mention that Congress lacks the subject matter expertise to do so.

If only it worked that way in reality.

The present cases involve a law where Congress isn't and hasn’t been funding enforcement for decades and so NMFS implemented its own rule for funding it. I understand the nobility of the cause here. But, at the very least, the courts should NOT be deferring to the agency on how to fund enforcement. Or are you people really arguing that we need to defer to subject matter experts on funding enforcement?

Suppose a local police force didn't have adequate funding for paying their police officers. So, they decided that in order to adequately fund their police force, they would simply charge each resident of their district a fee every time a police officer was called.
That is similar to what is happening here.

We don’t even have to suppose! We’ve seen this in its nightmare form. Ferguson, MO, shows us what happens when those who execute the laws take it upon themselves to create their own revenue to fund such enforcement.

I’m guessing that all the administrative law dictators in this thread have zero desire to defer to the subject matter experts in the Ferguson, MO police department.

The correct fix would be to provide funding to go along with everything that Congress mandates. There are already way too many unfunded mandates in government.

sure. but congress is also beating the agency up for not doing more enforcement. They are in a no win position. if they did absolutely nothing, they would get sued to do the job they've been mandated to do. There are plenty examples of that. In some ways the agency probably wants SCOTUS to decided against it. It would keep Congress from further politicizing them and making up lies.

[Anonymous]

Anonymous wrote:This whole argument is a between a bunch of platitude spouting simpletons who make cryptic arguments like “Congress needs to do more”.

Whereas the intelligent arguments, basically those advocating in favor of Chevron, are coming from the folks who actually understand the vital role that experts play in helping establishing safe levels of things like NoX emissions on a community.

Do you fks really want less water protections? Why do you want bad air? It seems like you have no clue that pollution is unhealthy.

Just have agencies propose regulations to Congress and then they can approve or disapprove.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Agencies need to do less

Congress needs to do more.

Congress writes laws that provide the framework and parameters. But they leave the specifics of implementation up to agencies, through rulemaking. Rulemakings have to be within the scope of the statutes enacted by Congress. It would be ineffective for Congress to micromanage that, not to mention that Congress lacks the subject matter expertise to do so.

If only it worked that way in reality.

The present cases involve a law where Congress isn't and hasn’t been funding enforcement for decades and so NMFS implemented its own rule for funding it. I understand the nobility of the cause here. But, at the very least, the courts should NOT be deferring to the agency on how to fund enforcement. Or are you people really arguing that we need to defer to subject matter experts on funding enforcement?

The agency is still required by law to perform enforcement on fishing quotas to protect the fisheries industry as a whole against depletion from overfishing. First Congress by defunding, and now potentially the Courts, are removing the agency's ability to do the job that they are mandated by statute to do. That seems like a gross judiciary overreach to me, and it goes against the statutes which mandate enforcement. A much better alternative would have been to allow some alternative mechanism for enforcement. Just striking down the ability of agencies to implement the laws that are on the books would be major malfeasance by the courts.

There have been cases where states or advocacy groups or others have sued the government to compel it to do the job it's mandated to do. I can see something like that happening.

Trump should have realized this and had Border Patrol and Customs collect fees for wall funding.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Regulations are liability protection by specifying the minimum requirements to comply with a law. Most regulatory agencies are friendly to the industry they regulate because interest groups and friendly Members of the House and Senate make it so.

Whatever companies save by negating regulations, they will spend much more on attorneys and end up with uncertain and changing requirements dictated by various court cases. There won’t be no rules. There will be a jumble of case-by-case rules.

So much this.

Plus, won't all those agency folks that write regulations just switch over to being expert witnesses to explain things in court to judges?

Regulations are guidance about laws -- and without regulations, judges will still want guidance for statutory interpretation. The idea that getting rid of Chevron will be a means to dismantle agencies seems like a bizzaro fantasy.

And instead of having one nationwide regulation subject to notice and comment from the public, there will be various court decisions that could be all over the place without any opportunity for public review and comment before those decisions are released and inforced.

Great jobs program for attorneys and judges!

Oh right, as if judges have the mental capacity to understand something like the alpha and power of a clinical trial, false discovery rate for disease test, or the intricacies of genetic toxicology when hearing a court case over whether some pharma company’s drug or tech should be approved. Newsflash: corporations will always find an ‘expert witness’ to support their side no matter how much of a trash argument or data they have. You want to rely on a judge who has never had science or engineering training to make a decision on science and engineering ideas that could profoundly harm the entire planet?


It’d be like taking a random Joe Schmo off the street who has had an office job their whole life and then getting a master electrician to explain to them in minute detail how to do electrical work for a commercial building. You then gotta trust that the Schmo off the street could interpret everything the master electrician told them and then rely on the Schmo to wire the building.

Completely insane.

Guessing you are not a big fan of jury trials.

[Anonymous]

Hopefully after this ruling we can move on to doing away with regulation of the stock market, banking, trademark, copyright and patents.

[Anonymous]

I predict this will have many unintended side effects. One of them, ironically, may be that the cost of regulation actually increases because of the increased need for attorneys to deal with all the litigation. If regulations are now on shaky legal ground, the obvious course of action for a regulated community is to bog down their regulator with legal action. The regulators will then be required to raise their fees in order to afford more attorneys and legal assistants.

I, for one, am really uneasy with the prospect of things like financial regulations being left to the judiciary. The regulated communities tend to be a lot better funded than their regulators, and there seems to be a lot of opportunity for corruption if this is handed over to elected judges.

[Anonymous]

Anonymous wrote:

Anonymous wrote:This whole argument is a between a bunch of platitude spouting simpletons who make cryptic arguments like “Congress needs to do more”.

Whereas the intelligent arguments, basically those advocating in favor of Chevron, are coming from the folks who actually understand the vital role that experts play in helping establishing safe levels of things like NoX emissions on a community.

Do you fks really want less water protections? Why do you want bad air? It seems like you have no clue that pollution is unhealthy.

Just have agencies propose regulations to Congress and then they can approve or disapprove.

Congress has oversight

[Anonymous]

Does this mean Carbon dioxide will stop being a pollutant?

[Anonymous]

This may have already been covered, but could someone explain why judicial deference to administrative agencies based on their expertise is appropriate, but it's inappropriate to do so in criminal cases (i.e. prosecutor calling the medical examiner to testify that the cause of death was homicide)?

If the issue is one of routine interpretation, how is that immune from politics, since agencies are part of the Executive Branch and subject to the then-President's policy priorities?

It would seem reasonable that everyone has to prove their case. Agencies claiming that they should get deference because they've "always done things this way" isn't much of an excuse. Agencies can certainly explain that a court's departure from their historical interpretation could cause disruption, but doesn't that go to the heart of the case?

[Anonymous]

Anonymous wrote:This may have already been covered, but could someone explain why judicial deference to administrative agencies based on their expertise is appropriate, but it's inappropriate to do so in criminal cases (i.e. prosecutor calling the medical examiner to testify that the cause of death was homicide)?

If the issue is one of routine interpretation, how is that immune from politics, since agencies are part of the Executive Branch and subject to the then-President's policy priorities?

It would seem reasonable that everyone has to prove their case. Agencies claiming that they should get deference because they've "always done things this way" isn't much of an excuse. Agencies can certainly explain that a court's departure from their historical interpretation could cause disruption, but doesn't that go to the heart of the case?

The agency only gets deference in limited circumstances: (1) when Congress has been ambiguous in its drafting of the law text (that is, Congress has not explicitly addressed the issue being argued) and (2) when the agency’s interpretation is “reasonable.”

The deference actually acknowledges that we have a dynamic political process and that different Administrations can come to different “reasonable” interpretations of how to faithfully execute a law passed by Congress. It’s also an acknowledgement of the impossibility for Congress to have perfect ex-ante knowledge of how laws will apply to future changes in a marketplace or the expertise to define and calibrate every nuance for a technical issue intended to be covered by a statute.

For example, can Congress set the technical parameters of nuclear safety standards in a law? Of course not; as a collective body they do not have the expertise. It is insane for the Supreme Court to mandate that Congress set such standards in a piece of legislation.

[Anonymous]

Here’s a twist of irony: will removal of the Chevron deference necessitate a big expansion of government?

If the Judiciary intends to become a policymaking body, they will likely need to build out a deep bench of policy experts that are “loyal” to judges.