The End of the Administrative State
June 28, 2024 7:45 AM Subscribe
"The Supreme Court on Friday reduced the authority of executive agencies, sweeping aside a longstanding legal precedent that required courts to defer to the expertise of federal administrators in carrying out laws passed by Congress. The precedent, Chevron v. Natural Resources Defense Council, is one of the most cited in American law. There have been 70 Supreme Court decisions relying on Chevron, along with 17,000 in the lower courts. The decision threatens regulations in countless areas, including the environment, health care and consumer safety." Supreme Court Overrules Chevron Doctrine, Imperiling an Array of Federal Rules (NYT; archive)
SCOTUSBlog on the likely effects.
Elie Mystal: "Conservatives have now completed their generational goals of overturning Abortion, Affirmative Action, and Chevron. If y'all don't think Obergefell and gay marriage is next on the chopping block, you must read the New York Times."
SCOTUSBlog on the likely effects.
Elie Mystal: "Conservatives have now completed their generational goals of overturning Abortion, Affirmative Action, and Chevron. If y'all don't think Obergefell and gay marriage is next on the chopping block, you must read the New York Times."
Mod note: Comment and response removed. Please avoid staring off a thread with relitigating earlier presidential election and doom and gloom.
posted by Brandon Blatcher (staff) at 8:02 AM on June 28 [5 favorites]
posted by Brandon Blatcher (staff) at 8:02 AM on June 28 [5 favorites]
Love Roberts trying to tie off the end with "But the existing things under Chevron deference are fine and aren't overturned" like relitigating every one of those with whatever (false) pretense is available won't be the goal of every company under the sun as of 1030am.
How do you even trust goods and services with Chevron dead? A bad actor can do incredible damage, thinking (wrongly) that a rule is now invalid, before the law catches up with them. If the law catches up with them before the rule is actually invalidated by some fever dream ruling of the 5th circuit.
As an example, how much of the relative safety of 401K accounts is clearly articulated by law versus interpreted by agency?
posted by Slackermagee at 8:04 AM on June 28 [22 favorites]
How do you even trust goods and services with Chevron dead? A bad actor can do incredible damage, thinking (wrongly) that a rule is now invalid, before the law catches up with them. If the law catches up with them before the rule is actually invalidated by some fever dream ruling of the 5th circuit.
As an example, how much of the relative safety of 401K accounts is clearly articulated by law versus interpreted by agency?
posted by Slackermagee at 8:04 AM on June 28 [22 favorites]
What is the antonym of "Supreme"? Because that's what this Court is shaping up to be.
posted by crazy_yeti at 8:08 AM on June 28 [10 favorites]
posted by crazy_yeti at 8:08 AM on June 28 [10 favorites]
Congress started to crumble in the 90s, and really died with the Republican brinkmanship under Obama. The only way government kept working was by the executive branch interpreting old laws in new ways because they weren't getting updated, or the courts doing the same. Congress should be able to issue a swift rebuke and fix things, but that isn't happening. The courts strike something down knowing that it's nothing. That shouldn't be part of their consideration in a functional government, but it is. And now they're cutting out the executive branch hard.
I don't love the executive having a ton of power. Both abstractly, and because the electoral college swings Republican. Chevron put a lot of power into the executive branch and tied the court's hands in a way I never felt great about. Jarskey, the ruling yesterday about the SEC and how public rights violations require a jury trial was way more horrible to me. That severely impares and delays any kind of SEC enforcement, and the same with the EPA, FDA, CFPB, and more, I'm sure. But together, they're an outright power grab.
posted by Garm at 8:15 AM on June 28 [11 favorites]
I don't love the executive having a ton of power. Both abstractly, and because the electoral college swings Republican. Chevron put a lot of power into the executive branch and tied the court's hands in a way I never felt great about. Jarskey, the ruling yesterday about the SEC and how public rights violations require a jury trial was way more horrible to me. That severely impares and delays any kind of SEC enforcement, and the same with the EPA, FDA, CFPB, and more, I'm sure. But together, they're an outright power grab.
posted by Garm at 8:15 AM on June 28 [11 favorites]
As someone who works in teh environmental field, this is pretty fucking devastating. There are decades of built-up understandings and interpretations that have been relied upon by regulators, by industries, and by the public that are going to be challenged every day going forward. Nobody will know from one month to the next how a particular chemical is managed, or whether a specific parcel is subject to restrictions because of habitat for endangered species, or what technology is required to scrub emissions from a power plant.
The courts will be absolutely inundated with challenges to every single federal regulatory agency, from the FDA to the Fish and Wildlife Service to CBP.
SCOTUS could have decided that NOAA's imposition of the fee on the fishing boats was incorrect; they didn't have to do this.
And now the American public -- and American business -- who rely on stable regulatory schemes, are going to be thrown into administrative chaos.
I'm so glad I'm only a few years from retirement. This is going to be a shitshow.
posted by suelac at 8:20 AM on June 28 [42 favorites]
The courts will be absolutely inundated with challenges to every single federal regulatory agency, from the FDA to the Fish and Wildlife Service to CBP.
SCOTUS could have decided that NOAA's imposition of the fee on the fishing boats was incorrect; they didn't have to do this.
And now the American public -- and American business -- who rely on stable regulatory schemes, are going to be thrown into administrative chaos.
I'm so glad I'm only a few years from retirement. This is going to be a shitshow.
posted by suelac at 8:20 AM on June 28 [42 favorites]
Sure enough, the decision in Jarkesy gave away the game, which is to completely hamstring administrative agencies. Notably, because the mifepristone decision was based on standing, this tees up a future case in which a court does not have to defer to the FDA’s expertise on whether mifepristone is safe and should remain on the market.
The court doesn’t want that responsibility. It wants litigation over these issues to be so expensive, time-consuming, and controlled by conservative judges that no one bothers. We will have an 18th century government in a 21st century world.
posted by jedicus at 8:23 AM on June 28 [30 favorites]
The court doesn’t want that responsibility. It wants litigation over these issues to be so expensive, time-consuming, and controlled by conservative judges that no one bothers. We will have an 18th century government in a 21st century world.
posted by jedicus at 8:23 AM on June 28 [30 favorites]
What is the antonym of "Supreme"?
"mystical foundation of authority" [derrida, 35 page pdf]
posted by HearHere at 8:26 AM on June 28 [3 favorites]
"mystical foundation of authority" [derrida, 35 page pdf]
posted by HearHere at 8:26 AM on June 28 [3 favorites]
If y'all don't think Obergefell and gay marriage is next on the chopping block, you must read the New York Times."
Or, like... virtually all progress trans people have made, which largely rests on administrative decisions. The almighty freakout everyone had about REAL ID was rooted in the inaccessibility of changing gender markers at the federal level, which has largely been resolved, purely by administrative action.
posted by hoyland at 8:36 AM on June 28 [8 favorites]
Or, like... virtually all progress trans people have made, which largely rests on administrative decisions. The almighty freakout everyone had about REAL ID was rooted in the inaccessibility of changing gender markers at the federal level, which has largely been resolved, purely by administrative action.
posted by hoyland at 8:36 AM on June 28 [8 favorites]
Depressed by the debate... Depressed by this ruling... Sure, fuck it, I'll read some Derrida. What's the worst that could happen.
posted by Pickman's Next Top Model at 8:50 AM on June 28 [19 favorites]
posted by Pickman's Next Top Model at 8:50 AM on June 28 [19 favorites]
It's nothing short of the end of fact-based reality as we know it.
Decisions like the mask-mandate reversal, based on some judge's utterly basic misunderstanding and whatever headlines they read that morning, will become the norm.
posted by Dashy at 8:54 AM on June 28 [12 favorites]
Decisions like the mask-mandate reversal, based on some judge's utterly basic misunderstanding and whatever headlines they read that morning, will become the norm.
posted by Dashy at 8:54 AM on June 28 [12 favorites]
I hate watching the rapid dismantling of my society and government. Seems like we should be doing something about it that isn't despairing online or other feckless shit suggested when this kind of dire call for dire action arises.
posted by GoblinHoney at 8:57 AM on June 28 [13 favorites]
posted by GoblinHoney at 8:57 AM on June 28 [13 favorites]
This right here, this is the nightmare. As an acquaintance of mine put it, all of the anti-choice, anti-LGBT, white nationalist, culture war bullshit has been a fig-leaf, a rallying cry for the base so that corporations can make this happen.
JJ. ROBERTS, THOMAS, ALITO, KAVENAUGH, GORSUCH and BARRETT just killed and injured an uncountable number of people this morning. The damage from this will be immeasurable.
posted by Navelgazer at 8:57 AM on June 28 [30 favorites]
JJ. ROBERTS, THOMAS, ALITO, KAVENAUGH, GORSUCH and BARRETT just killed and injured an uncountable number of people this morning. The damage from this will be immeasurable.
posted by Navelgazer at 8:57 AM on June 28 [30 favorites]
"I tend to think, however, that in the long run Chevron will endure and be given its full scope-not so much because it represents a rule that is easier to follow and thus easier to predict (though that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs."
The conclusion of a thoughtful and balanced article endorsing Chevron by (checks notes) Justice Scalia. From 1989, when the administrative branch was controlled by (checks notes) the Republican Party.
posted by Mr.Know-it-some at 8:58 AM on June 28 [18 favorites]
The conclusion of a thoughtful and balanced article endorsing Chevron by (checks notes) Justice Scalia. From 1989, when the administrative branch was controlled by (checks notes) the Republican Party.
posted by Mr.Know-it-some at 8:58 AM on June 28 [18 favorites]
Has anyone tried re-balancing the court by expanding it? Or is that move forbidden under Queensbury Rules?
Seriously, there's more than enough dirt on certain justices to make the case that the court is corrupt. Republicans attack the impartiality of the courts all. the. goddamn. time. And they didn't suffer any electoral consequences for deliberately holding up Garland's nomination.
So the argument for not politicizing an already politicized court is what again?
posted by RonButNotStupid at 9:07 AM on June 28 [10 favorites]
Seriously, there's more than enough dirt on certain justices to make the case that the court is corrupt. Republicans attack the impartiality of the courts all. the. goddamn. time. And they didn't suffer any electoral consequences for deliberately holding up Garland's nomination.
So the argument for not politicizing an already politicized court is what again?
posted by RonButNotStupid at 9:07 AM on June 28 [10 favorites]
As soon as the right-wingers on the Court started ignoring stare decisis, it became clear that they were sharpening their knives for Chevron. The Administrative Procedure Act is going to be an interesting thing to interpret in the wake of today's gutting of precedent.
posted by the sobsister at 9:08 AM on June 28 [10 favorites]
posted by the sobsister at 9:08 AM on June 28 [10 favorites]
let judges guess what the founding fathers would have said about AI or renewable energy
I don't think that's the issue. This is not about declaring a law unconstitutional (which is when they claim to be looking into Madison's soul). This is about interpreting the law. The case actually decided was about a law that required allowed the National Marine Fisheries Service to require fishing vessels to "carry" federal monitors, to prevent overfishing. The agency decided to implement the law by requiring fishing companies to pay for the monitoring. The law did not explicitly require those payments, but under Chevron, the agency had the discretion to impose them.
But this isn't just about a few fishermen; it's about the structure of our entire regulatory system.
posted by Mr.Know-it-some at 9:09 AM on June 28 [9 favorites]
I don't think that's the issue. This is not about declaring a law unconstitutional (which is when they claim to be looking into Madison's soul). This is about interpreting the law. The case actually decided was about a law that required allowed the National Marine Fisheries Service to require fishing vessels to "carry" federal monitors, to prevent overfishing. The agency decided to implement the law by requiring fishing companies to pay for the monitoring. The law did not explicitly require those payments, but under Chevron, the agency had the discretion to impose them.
But this isn't just about a few fishermen; it's about the structure of our entire regulatory system.
posted by Mr.Know-it-some at 9:09 AM on June 28 [9 favorites]
The district courts are completely unprepared for the sheer deluge of shit coming their way as their new roles as the gatekeepers to interpretations of regulations.
posted by Your Childhood Pet Rock at 9:10 AM on June 28 [9 favorites]
posted by Your Childhood Pet Rock at 9:10 AM on June 28 [9 favorites]
Of all of the hideous decisions issued today; and there are many - this is the one that will have the longest-term impact. It's gonna be diffuse, but big business will be able to ride roughshod over the lives of people much more easily now.
Millions will have their lives shortened by this, tens of millions of people's health affected. Read the effects on the Consumer Product Safety Commission, Consumer Financial Protection Bureau, Environmental Protection Agency, Food and Drug Administration, and Labor Department.
This is why business supports republicans. This is what trump hath wrought with the supreme court. And will wreak again in 2025.
posted by lalochezia at 9:12 AM on June 28 [33 favorites]
Millions will have their lives shortened by this, tens of millions of people's health affected. Read the effects on the Consumer Product Safety Commission, Consumer Financial Protection Bureau, Environmental Protection Agency, Food and Drug Administration, and Labor Department.
This is why business supports republicans. This is what trump hath wrought with the supreme court. And will wreak again in 2025.
posted by lalochezia at 9:12 AM on June 28 [33 favorites]
How the hell do you operate a business post-Chevron when you have no idea what any of the rules are and no ability to know what the rules are? How do you carry out due diligence? How do your lawyers evaluate anything you're doing? This has got to be a nightmare.
posted by Pope Guilty at 9:13 AM on June 28 [18 favorites]
posted by Pope Guilty at 9:13 AM on June 28 [18 favorites]
A huge amount of American health care runs on rules written by CMS. I wonder if United Health Group would like to litigate any of it?
posted by paper chromatographologist at 9:20 AM on June 28 [5 favorites]
posted by paper chromatographologist at 9:20 AM on June 28 [5 favorites]
So what is the recourse here? What should we be doing as a society when our highest court is inarguably corrupt? What happens when they declare Trump El Presidente for life?
Is my only option to keep my head down and take it? These people aren't thinking about what people do when backed into a corner repeatably.
posted by Sphinx at 9:21 AM on June 28 [8 favorites]
Is my only option to keep my head down and take it? These people aren't thinking about what people do when backed into a corner repeatably.
posted by Sphinx at 9:21 AM on June 28 [8 favorites]
If Trumpism is a dramatic cancer that can be excised or chemotherapied away in the best case, this is subtler and more insidious, like an autoimmune disease or mitochondrial disorder. Or hell, given the way things will keep lurching on for a bit longer, maybe acute radiation sickness or ricin poisoning. The body is alive and functioning, but its ability to regulate itself has been destroyed at a fundamental level. I guess the question is how quickly the degeneration will progress from here, and what precise combination of mass poisonings/environmental catastrophes/financial collapse will precipitate the fall.
posted by Rhaomi at 9:26 AM on June 28 [12 favorites]
posted by Rhaomi at 9:26 AM on June 28 [12 favorites]
Are there legal non-profits with capacity to take on the work of defending the expertise of civil servants?
posted by coffeecat at 9:31 AM on June 28 [2 favorites]
posted by coffeecat at 9:31 AM on June 28 [2 favorites]
govern the country now that they've taken it on
That's the best part, they don't plan on taking it on. Sure you can sue and hope a court allows it, but all depends on the court.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 9:37 AM on June 28 [4 favorites]
That's the best part, they don't plan on taking it on. Sure you can sue and hope a court allows it, but all depends on the court.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 9:37 AM on June 28 [4 favorites]
So if you are a big business, break the law and donate to Rs and bribe the courts with gifts. Thats how it works Its patronage all the way down. Rule of law was always just an excuse to control and make predicatble.the middle people and oppress the weak, it rarley touched the strong, this just clarifiea the charade is over and the idea of legal coherence is ending and the legal fiefdom is underway.
Deregulation makes the court the regulators.
posted by No Climate - No Food, No Food - No Future. at 9:42 AM on June 28 [10 favorites]
Deregulation makes the court the regulators.
posted by No Climate - No Food, No Food - No Future. at 9:42 AM on June 28 [10 favorites]
I have mixed feelings about the power of the executive branch being dismantled. It appears that convicted felon Donald Trump will shortly wield full control of it from top to bottom and that would make him the final arbiter on any ambiguity in Federal law.
Traditionally, this hasn’t been much of a problem because the president has been reluctant to directly interfere with the Executive bureaucracy. I have no belief whatsoever that Trump would respect that tradition and so likely every single ambiguity would come out in favor of big business.
posted by Tell Me No Lies at 9:48 AM on June 28 [1 favorite]
Traditionally, this hasn’t been much of a problem because the president has been reluctant to directly interfere with the Executive bureaucracy. I have no belief whatsoever that Trump would respect that tradition and so likely every single ambiguity would come out in favor of big business.
posted by Tell Me No Lies at 9:48 AM on June 28 [1 favorite]
Is my only option to keep my head down and take it? These people aren't thinking about what people do when backed into a corner repeatably.
When people like Trump are constantly trying to get the military to suppress protests, I think it shows that at least some of them are thinking about it. But blood in the street is literally the critical lubricant of historical change, so if we want it, we’re going to have to risk it anyway.
posted by ryanshepard at 10:00 AM on June 28 [3 favorites]
When people like Trump are constantly trying to get the military to suppress protests, I think it shows that at least some of them are thinking about it. But blood in the street is literally the critical lubricant of historical change, so if we want it, we’re going to have to risk it anyway.
posted by ryanshepard at 10:00 AM on June 28 [3 favorites]
How the hell do you operate a business post-Chevron when you have no idea what any of the rules are and no ability to know what the rules are? How do you carry out due diligence? How do your lawyers evaluate anything you're doing? This has got to be a nightmare.
this presumes that there will be regulators trying to regulate
posted by kokaku at 10:14 AM on June 28 [5 favorites]
this presumes that there will be regulators trying to regulate
posted by kokaku at 10:14 AM on June 28 [5 favorites]
"Our institutions will save us", my ass.
posted by Dashy at 10:18 AM on June 28 [6 favorites]
posted by Dashy at 10:18 AM on June 28 [6 favorites]
How the hell do you operate a business post-Chevron when you have no idea what any of the rules are and no ability to know what the rules are?
That greatly overstates what the Chevron doctrine covered. The laws are still the laws. It’s only the ambiguous laws that are affected, and those will now be resolved case by case by the court system with no deference to federal agencies, and in the long run by Congress passing laws that are not ambiguous.
In short, it is still very possible to do business.
As I said above, I have very mixed feelings here. The Chevron doctrine has resulted in some great things, but it puts a lot of power in the hands of an Executive branch that will, very possibly, shortly be controlled by someone who shouldn’t have that kind of power.
posted by Tell Me No Lies at 10:32 AM on June 28 [6 favorites]
That greatly overstates what the Chevron doctrine covered. The laws are still the laws. It’s only the ambiguous laws that are affected, and those will now be resolved case by case by the court system with no deference to federal agencies, and in the long run by Congress passing laws that are not ambiguous.
In short, it is still very possible to do business.
As I said above, I have very mixed feelings here. The Chevron doctrine has resulted in some great things, but it puts a lot of power in the hands of an Executive branch that will, very possibly, shortly be controlled by someone who shouldn’t have that kind of power.
posted by Tell Me No Lies at 10:32 AM on June 28 [6 favorites]
Without agency rulemaking, Congress will have to make the rules by statute - which much means much longer, more detailed, and more frequently revised statutes. Some committee staffs, and lobbyist firms, are going to double or triple in headcount. Depending upon your view of regulatory capture, this may not be a bad thing.
posted by MattD at 10:34 AM on June 28 [4 favorites]
posted by MattD at 10:34 AM on June 28 [4 favorites]
Assumes a congress and courts that are not just stacks of grandstanding nightmare gremlins though.
posted by Artw at 10:42 AM on June 28 [10 favorites]
posted by Artw at 10:42 AM on June 28 [10 favorites]
I can tell right now that I shouldn't follow this thread, it's just going to get me more and more upset. I said want to do something to help other than just vote, but most of the time I feel like I'm just trying to keep my head above water.
posted by JHarris at 10:44 AM on June 28 [14 favorites]
posted by JHarris at 10:44 AM on June 28 [14 favorites]
via bluesky:
It's such a wild coincidence that the court legalized bribing public officials a few days ago and today says that every activity the US government regulates now goes through themposted by Aya Hirano on the Astral Plane at 10:46 AM on June 28 [29 favorites]
Assumes a congress and courts that are not just stacks of grandstanding nightmare gremlins though.
If that’s the case this topic is among the smallest things we should be worried about.
posted by Tell Me No Lies at 10:51 AM on June 28 [1 favorite]
If that’s the case this topic is among the smallest things we should be worried about.
posted by Tell Me No Lies at 10:51 AM on June 28 [1 favorite]
"The Court has begun to implement the policy preferences of its conservative majority in a new and troubling way: by simultaneously stripping power from every political entity except the Supreme Court itself."
https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/
posted by CheeseDigestsAll at 10:51 AM on June 28 [20 favorites]
https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/
posted by CheeseDigestsAll at 10:51 AM on June 28 [20 favorites]
The laws are still the laws. It’s only the ambiguous laws that are affected
Yes, ambiguity like what constitutes wetlands. The courts have grabbed a tremendous amount of power, and as Justice Kagan pointed out in her dissent, "Agencies have expertise in those areas; courts do not."
posted by CheeseDigestsAll at 10:55 AM on June 28 [20 favorites]
Yes, ambiguity like what constitutes wetlands. The courts have grabbed a tremendous amount of power, and as Justice Kagan pointed out in her dissent, "Agencies have expertise in those areas; courts do not."
posted by CheeseDigestsAll at 10:55 AM on June 28 [20 favorites]
Yes, ambiguity like what constitutes wetlands. The courts have grabbed a tremendous amount of power, and as Justice Kagan pointed out in her dissent, "Agencies have expertise in those areas; courts do not."
Yep. And who has absolute control those agencies?
posted by Tell Me No Lies at 11:01 AM on June 28 [1 favorite]
Yep. And who has absolute control those agencies?
posted by Tell Me No Lies at 11:01 AM on June 28 [1 favorite]
Even if we had a functioning congress, there is no way 95% of the regulations that are out there make sense to have electeds meddling in or making decisions about.
I don’t know where we go from here except for court packing or a new constitutional convention. (And I understand the rules for a constitutional convention, it’s not happening.)
posted by CostcoCultist at 11:06 AM on June 28 [2 favorites]
I don’t know where we go from here except for court packing or a new constitutional convention. (And I understand the rules for a constitutional convention, it’s not happening.)
posted by CostcoCultist at 11:06 AM on June 28 [2 favorites]
Yep. And who has absolute control those agencies?
If Trump wins another term, I don't imagine this will hurt him one iota, is the thing. The worst it can do is hold up capricious spiteful applications of agency power against businesses he wants to retaliate against for one reason or another, and probably not that much. This ruling is his goal and the goal of his corporate owners, after all. There's no world where this comes back to bite Trump in the ass for however long he is in power. And whichever conservative demagogues follow him will enjoy the fruits of this for a long time to come as well.
If Biden (or, after last night, some other Democratic candidate) wins, this absolutely hamstrings them.
That's what this means.
posted by Navelgazer at 11:13 AM on June 28 [5 favorites]
If Trump wins another term, I don't imagine this will hurt him one iota, is the thing. The worst it can do is hold up capricious spiteful applications of agency power against businesses he wants to retaliate against for one reason or another, and probably not that much. This ruling is his goal and the goal of his corporate owners, after all. There's no world where this comes back to bite Trump in the ass for however long he is in power. And whichever conservative demagogues follow him will enjoy the fruits of this for a long time to come as well.
If Biden (or, after last night, some other Democratic candidate) wins, this absolutely hamstrings them.
That's what this means.
posted by Navelgazer at 11:13 AM on June 28 [5 favorites]
Supreme Court today: Administrative agencies like the EPA have no special expertise and require the oversight of experts like us, the Judiciary, who are the brains of the operation.
Also Supreme Court today: Oh wait, what, there's a difference between nitrous oxide (laughing gas) and nitrogen oxide (the pollutant our opinion yesterday was meant to be about)? Ha, ha, yeah we totally knew that we were just testing to see if YOU knew it! Anyway, uh, here's the corrected opinion.
posted by The Bellman at 11:13 AM on June 28 [32 favorites]
Also Supreme Court today: Oh wait, what, there's a difference between nitrous oxide (laughing gas) and nitrogen oxide (the pollutant our opinion yesterday was meant to be about)? Ha, ha, yeah we totally knew that we were just testing to see if YOU knew it! Anyway, uh, here's the corrected opinion.
posted by The Bellman at 11:13 AM on June 28 [32 favorites]
And McConnell and the GOP rushed Amy Coney Barrett to the Supreme Court bench in record time just days before the 2020 presidential election. As McConnell boasted, “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They [Democrats] won’t be able to do much about this for a long time to come.” That in a nutshell is McConnell’s indelible imprint on American politics.
posted by lalochezia at 11:14 AM on June 28 [14 favorites]
posted by lalochezia at 11:14 AM on June 28 [14 favorites]
Yep. And who has absolute control those agencies?
Though they are a part of the executive, they are called independent agencies for a reason. The President nominates commissioners but they must be confirmed by Congress, which is why we spent several years with a deadlocked FCC. Similarly, Trump was constantly in direct conflict with the agencies, many of which fought his directives tooth and nail. It is true that his appointees and heads of major departments had deleterious effects on the regulators, but it is far from absolute control.
This decision will be catastrophic as every regulator relies on interpreting their statutory authority to create rules and guidelines. That's basically their job - especially since the 80s. Every rule will now be challenged and sent to the courts to be ruled on by whatever fool sits on the bench. It's a massive judicial power grab.
posted by BlackLeotardFront at 11:14 AM on June 28 [9 favorites]
Though they are a part of the executive, they are called independent agencies for a reason. The President nominates commissioners but they must be confirmed by Congress, which is why we spent several years with a deadlocked FCC. Similarly, Trump was constantly in direct conflict with the agencies, many of which fought his directives tooth and nail. It is true that his appointees and heads of major departments had deleterious effects on the regulators, but it is far from absolute control.
This decision will be catastrophic as every regulator relies on interpreting their statutory authority to create rules and guidelines. That's basically their job - especially since the 80s. Every rule will now be challenged and sent to the courts to be ruled on by whatever fool sits on the bench. It's a massive judicial power grab.
posted by BlackLeotardFront at 11:14 AM on June 28 [9 favorites]
(In case you want the official corrected opinion, showing where "expert" Justice Gorsuch refers to nitrogen oxide as nitrous oxide five times, it's here.)
posted by The Bellman at 11:20 AM on June 28 [9 favorites]
posted by The Bellman at 11:20 AM on June 28 [9 favorites]
Though they are a part of the executive, they are called independent agencies for a reason
Under the Unitary Executive theory (which is what Trump operates under) it doesn’t matter who the commissioner is or if the agencies are supposed to be independent, the president has full control over everything in the executive branch. This means he can stock the scientists at the EPA with ex-Exxon employees who will tell you in scientific depth why global warming isn’t real, and under the Chevron doctrine courts would be forced to defer to them.
Punting these decisions to the judiciary is not ideal, but it’s better than a 100% chance that the courts will be forced to follow this “expertise”.
posted by Tell Me No Lies at 11:30 AM on June 28 [4 favorites]
Under the Unitary Executive theory (which is what Trump operates under) it doesn’t matter who the commissioner is or if the agencies are supposed to be independent, the president has full control over everything in the executive branch. This means he can stock the scientists at the EPA with ex-Exxon employees who will tell you in scientific depth why global warming isn’t real, and under the Chevron doctrine courts would be forced to defer to them.
Punting these decisions to the judiciary is not ideal, but it’s better than a 100% chance that the courts will be forced to follow this “expertise”.
posted by Tell Me No Lies at 11:30 AM on June 28 [4 favorites]
I don’t know where we go from here except for court packing or a new constitutional convention. (And I understand the rules for a constitutional convention, it’s not happening.)
If you think things are bad now, you absolutely should not wish for a constitutional convention. The christofascists have been agitating and organizing for this eventuality for years, and know exactly how they would write everything they've done so far (and more!) into a new constitution, whereas the Dems/Left HAVE. NOT. DONE. THIS. AT. ALL! and are completely unprepared. It's not even a case of "nobody can predict what comes out of chaos" -- we have a pretty good idea what would happen with a constitutional convention.
posted by Pedantzilla at 11:34 AM on June 28 [15 favorites]
If you think things are bad now, you absolutely should not wish for a constitutional convention. The christofascists have been agitating and organizing for this eventuality for years, and know exactly how they would write everything they've done so far (and more!) into a new constitution, whereas the Dems/Left HAVE. NOT. DONE. THIS. AT. ALL! and are completely unprepared. It's not even a case of "nobody can predict what comes out of chaos" -- we have a pretty good idea what would happen with a constitutional convention.
posted by Pedantzilla at 11:34 AM on June 28 [15 favorites]
*raises hand* I’ve been working on a new Constitution actually (really)! For fun.
posted by caviar2d2 at 11:44 AM on June 28 [8 favorites]
posted by caviar2d2 at 11:44 AM on June 28 [8 favorites]
I have to assume the last several SCOTUS decisions have just been intended to prepare us so that when they finally drop their decree that Trump has absolute immunity from any prosecution, we'll all be too tired and demoralized to do anything but shrug and accept it.
posted by Two unicycles and some duct tape at 11:46 AM on June 28 [8 favorites]
posted by Two unicycles and some duct tape at 11:46 AM on June 28 [8 favorites]
Punting these decisions to the judiciary is not ideal, but it’s better than a 100% chance that the courts will be forced to follow this “expertise”.
I guess I just don't understand what you're arguing exactly. Is it better than some random judge decides this? I'm aware the agencies have a revolving door with industry, the whole government does, but the judiciary is no better. Exxon won't have to go through the trouble of infiltrating the EPA, it can just hoodwink a judge in whatever jurisdiction it feels is best suited to knocking down a federal rule. What Cannon is doing with the Trump documents case will be repeated across the country with every regulation that industry doesn't like.
I get the cynicism, really, but also these agencies do a tremendous amount of good work - the bureaucracy has its issues, but our regulatory apparatus is actually pretty functional (compare with other countries, not with an ideal) when allowed to operate. This prevents it from operating.
posted by BlackLeotardFront at 11:51 AM on June 28 [8 favorites]
I guess I just don't understand what you're arguing exactly. Is it better than some random judge decides this? I'm aware the agencies have a revolving door with industry, the whole government does, but the judiciary is no better. Exxon won't have to go through the trouble of infiltrating the EPA, it can just hoodwink a judge in whatever jurisdiction it feels is best suited to knocking down a federal rule. What Cannon is doing with the Trump documents case will be repeated across the country with every regulation that industry doesn't like.
I get the cynicism, really, but also these agencies do a tremendous amount of good work - the bureaucracy has its issues, but our regulatory apparatus is actually pretty functional (compare with other countries, not with an ideal) when allowed to operate. This prevents it from operating.
posted by BlackLeotardFront at 11:51 AM on June 28 [8 favorites]
A question for MeFites with law degrees: is this something that can be fixed by Congress? Can Congress pass a law explicitly granting agencies the powers that Chevron held them to have?
posted by kristi at 12:01 PM on June 28 [2 favorites]
posted by kristi at 12:01 PM on June 28 [2 favorites]
After this ruling and the debate last night, I apologized to my kids this morning about the country they are inheriting.
Even as an educated, cis-het, white guy -- the putative "winner" in the new Gilead -- I am revolted
by this putsch.
posted by wenestvedt at 12:08 PM on June 28 [6 favorites]
Even as an educated, cis-het, white guy -- the putative "winner" in the new Gilead -- I am revolted
by this putsch.
posted by wenestvedt at 12:08 PM on June 28 [6 favorites]
And can judges issue narrow Chevron-esque decisions deferring to an agency on a particular issue? Or will SCOTUS just strike it down should it run up the flagpole?
posted by credulous at 12:08 PM on June 28 [1 favorite]
posted by credulous at 12:08 PM on June 28 [1 favorite]
can judges issue narrow Chevron-esque decisions deferring to an agency
As I understand it, they can still consult agencies and agree with their decision, but there is no expectation of doing so. If there is an ambiguity, they can call the EPA as an expert witness or amici curae or whatever, and the judge can say "I think the EPA's interpretation is the right one." Or they can just not call them, and say "I have resolved this ambiguity as I see fit after hearing Exxon's arguments." And yes, if the industry pushing the interpretation doesn't like it, they can run it up the court system if they want. It's no guarantee SCOTUS takes the case but it's definitely up to them.
As for Congress reestablishing Chevron in law, I don't think it works. The separation of powers means that they can't just pass a law telling the Judiciary how to do its job. However they might be able to rewrite the statutory authorities for the independent agencies (like the Communications Act for the FCC) so that they are explicitly empowered to make certain decisions. Whether that would actually happen is doubtful though.
posted by BlackLeotardFront at 12:20 PM on June 28 [3 favorites]
As I understand it, they can still consult agencies and agree with their decision, but there is no expectation of doing so. If there is an ambiguity, they can call the EPA as an expert witness or amici curae or whatever, and the judge can say "I think the EPA's interpretation is the right one." Or they can just not call them, and say "I have resolved this ambiguity as I see fit after hearing Exxon's arguments." And yes, if the industry pushing the interpretation doesn't like it, they can run it up the court system if they want. It's no guarantee SCOTUS takes the case but it's definitely up to them.
As for Congress reestablishing Chevron in law, I don't think it works. The separation of powers means that they can't just pass a law telling the Judiciary how to do its job. However they might be able to rewrite the statutory authorities for the independent agencies (like the Communications Act for the FCC) so that they are explicitly empowered to make certain decisions. Whether that would actually happen is doubtful though.
posted by BlackLeotardFront at 12:20 PM on June 28 [3 favorites]
A question for MeFites with law degrees: is this something that can be fixed by Congress? Can Congress pass a law explicitly granting agencies the powers that Chevron held them to have?
This is a complicated question that I would guess nobody on here is competent to answer -- in fact it may be impossible to answer right now. In my view, given what the Court looks like today, the only way to make this effective long term would be some kind of jurisdiction stripping. Paradoxically, though not surprisingly, the Court has traditionally struck down Congressional efforts at jurisdiction stripping but there are legal scholars much smarter than me who continue to argue that it could and should be effective.
If you want to dig in, (NYU Law Professor) Chris Sprigman's Testimony to the Presidential Commission on the Supreme Court is a good place to start. His writing in this area is generally really good. (IAAL. IANYL. This is not my area, AdLaw was my worst grade in law school, and this in absolutely not legal advice, in case you were thinking about trying jurisdiction stripping at home, somehow?)
posted by The Bellman at 12:23 PM on June 28 [6 favorites]
This is a complicated question that I would guess nobody on here is competent to answer -- in fact it may be impossible to answer right now. In my view, given what the Court looks like today, the only way to make this effective long term would be some kind of jurisdiction stripping. Paradoxically, though not surprisingly, the Court has traditionally struck down Congressional efforts at jurisdiction stripping but there are legal scholars much smarter than me who continue to argue that it could and should be effective.
If you want to dig in, (NYU Law Professor) Chris Sprigman's Testimony to the Presidential Commission on the Supreme Court is a good place to start. His writing in this area is generally really good. (IAAL. IANYL. This is not my area, AdLaw was my worst grade in law school, and this in absolutely not legal advice, in case you were thinking about trying jurisdiction stripping at home, somehow?)
posted by The Bellman at 12:23 PM on June 28 [6 favorites]
Though they are a part of the executive, they are called independent agencies for a reason. The President nominates commissioners but they must be confirmed by Congress, which is why we spent several years with a deadlocked FCC.
Trump also plans to purge the civil service via Schedule F, reclassifying whole swathes of positions as political appointments.
posted by hoyland at 12:25 PM on June 28 [6 favorites]
Trump also plans to purge the civil service via Schedule F, reclassifying whole swathes of positions as political appointments.
posted by hoyland at 12:25 PM on June 28 [6 favorites]
Nice to know the only precedent this Supreme Court respects is the precedent of massively fucking over other people. 19th Century, here we come!
posted by lock robster at 12:43 PM on June 28 [4 favorites]
posted by lock robster at 12:43 PM on June 28 [4 favorites]
The separation of powers means that they can't just pass a law telling the Judiciary how to do its job.
They absolutely 100% can do this. Congress could strip them of their budget, forcing them to get rid of all their clerks. Congress could instruct the Court that it must hear every case that comes to them. Congress could tell them that they have to ride the circuit.
posted by rhymedirective at 12:44 PM on June 28 [14 favorites]
They absolutely 100% can do this. Congress could strip them of their budget, forcing them to get rid of all their clerks. Congress could instruct the Court that it must hear every case that comes to them. Congress could tell them that they have to ride the circuit.
posted by rhymedirective at 12:44 PM on June 28 [14 favorites]
Absolutely befuddled by anyone saying this is purely a product of Trumpism. Come the fuck on, have you been paying attention to the Supreme Aourt, like at all?
posted by MisantropicPainforest at 12:44 PM on June 28 [2 favorites]
posted by MisantropicPainforest at 12:44 PM on June 28 [2 favorites]
They absolutely 100% can do this. Congress could strip them of their budget...
I'm sure you're correct - I only meant direct action like saying "you can't decide things this way." (And this is just my layman's understanding.) Certainly there are levers they can push and pull, and I imagine we will see that happening.
posted by BlackLeotardFront at 12:55 PM on June 28 [1 favorite]
I'm sure you're correct - I only meant direct action like saying "you can't decide things this way." (And this is just my layman's understanding.) Certainly there are levers they can push and pull, and I imagine we will see that happening.
posted by BlackLeotardFront at 12:55 PM on June 28 [1 favorite]
A question for MeFites with law degrees: is this something that can be fixed by Congress? Can Congress pass a law explicitly granting agencies the powers that Chevron held them to have?
Law professor Michael Dorf took a shot at answering this exact question today.
posted by Gadarene at 12:58 PM on June 28 [8 favorites]
Law professor Michael Dorf took a shot at answering this exact question today.
posted by Gadarene at 12:58 PM on June 28 [8 favorites]
It's McConnellism (no Merrick Garland) plus Trumpism (Gorsuch, Kavenaugh, Barrett), gleefully conducted by the Federalist Society (Leonard Leo) and funded by right wing billionaires.
posted by CheeseDigestsAll at 12:58 PM on June 28 [3 favorites]
posted by CheeseDigestsAll at 12:58 PM on June 28 [3 favorites]
The end of Chevron deference is being incredibly under-reacted to, I’m afraid.
Welcome to the thunder dome.
posted by edithkeeler at 1:06 PM on June 28 [8 favorites]
Welcome to the thunder dome.
posted by edithkeeler at 1:06 PM on June 28 [8 favorites]
Regulations are good for everyone who are serious about their business. And obviously, they are good for us, the consumers.
Deregulating the US will make US companies even more vulnerable than they are already. Europe doesn't want a number of US products today, this ruling will exclude even more products from the global market.
Today, the EU is the most regulated market, but things are catching on in Latin America, China and India. I'm sure the African nations will follow soon.
The US is the world's biggest economy, but it is falling back on exports. After WW2, US products were sought after everywhere. The world wanted Coke, Ford and rock music. It isn't like that at all today, and the SC ruling is not helpful.
posted by mumimor at 1:51 PM on June 28 [5 favorites]
Deregulating the US will make US companies even more vulnerable than they are already. Europe doesn't want a number of US products today, this ruling will exclude even more products from the global market.
Today, the EU is the most regulated market, but things are catching on in Latin America, China and India. I'm sure the African nations will follow soon.
The US is the world's biggest economy, but it is falling back on exports. After WW2, US products were sought after everywhere. The world wanted Coke, Ford and rock music. It isn't like that at all today, and the SC ruling is not helpful.
posted by mumimor at 1:51 PM on June 28 [5 favorites]
Jacob Levy
I mean, after Trump reinstates Schedule F, the executive agencies really *won't* have any special expertise to draw on, so the Roberts court is just planning ahead.
posted by lalochezia at 2:06 PM on June 28 [2 favorites]
I mean, after Trump reinstates Schedule F, the executive agencies really *won't* have any special expertise to draw on, so the Roberts court is just planning ahead.
posted by lalochezia at 2:06 PM on June 28 [2 favorites]
Something that occurred to me on the drive home: In other countries, where one branch seizes power to this degree after legalizing the corruption they have been publicly practicing for years, you usually next see that branch as a backdrop for a press conference given by a General and the streets are all weirdly very empty.
But that is not this country, this country appears to just be locked into being ruled by the Court.
posted by Slackermagee at 2:15 PM on June 28 [3 favorites]
But that is not this country, this country appears to just be locked into being ruled by the Court.
posted by Slackermagee at 2:15 PM on June 28 [3 favorites]
When people like Trump are constantly trying to get the military to suppress protests
You mean like University presidents in blue states? Yeah, I'm worried about that too...
posted by armacy at 2:43 PM on June 28 [2 favorites]
You mean like University presidents in blue states? Yeah, I'm worried about that too...
posted by armacy at 2:43 PM on June 28 [2 favorites]
I have a teacher's POV on this. We give students syllabi with the rules for the semester. We will say that you can't take a photo of a test question on your computer screen. They take a screenshot and say it wasn't specifically a photo.
This is why strict constructionalists are whiny babies. In the days of Christ they were the lawyers and the Pharisees. As Jesus put it, "The law was made for man, not man for the law” (Mk 2:27)
posted by dances_with_sneetches at 3:02 PM on June 28 [6 favorites]
This is why strict constructionalists are whiny babies. In the days of Christ they were the lawyers and the Pharisees. As Jesus put it, "The law was made for man, not man for the law” (Mk 2:27)
posted by dances_with_sneetches at 3:02 PM on June 28 [6 favorites]
I read the Michal Dorf link that Gadarene mentioned above. Both Thomas and Gorsuch have written a concurrence stating in essence that "Chevron is unconstitutional because it limited the scope of Article III judicial power".
Since the conservatives are reasoning backward from a position, if the DAARA ( Deference to Administrative Agencies Restoration Act) is enacted, they will simply fall back to the Thomas / Gorsuch view. It is not as if there are any actual judicial principles involved here.
posted by techSupp0rt at 4:02 PM on June 28 [3 favorites]
Since the conservatives are reasoning backward from a position, if the DAARA ( Deference to Administrative Agencies Restoration Act) is enacted, they will simply fall back to the Thomas / Gorsuch view. It is not as if there are any actual judicial principles involved here.
posted by techSupp0rt at 4:02 PM on June 28 [3 favorites]
These people are accomplices in a criminal conspiracy against the United States. Indict, arrest, and try them.
posted by ob1quixote at 4:26 PM on June 28 [4 favorites]
posted by ob1quixote at 4:26 PM on June 28 [4 favorites]
The Verge has a really good writeup on how this affects tech (and other) issues.
posted by General Malaise at 4:28 PM on June 28 [4 favorites]
posted by General Malaise at 4:28 PM on June 28 [4 favorites]
To be fair, laughing gas is a nitrogen oxide. Nitrogen has many oxides.
That said, Gorsuch is a fuckwit.
posted by flabdablet at 4:37 PM on June 28 [4 favorites]
That said, Gorsuch is a fuckwit.
posted by flabdablet at 4:37 PM on June 28 [4 favorites]
Speaking of separation of powers, remember that old Founding Fathers-era theory that jealousy of powers between the 3 co-equal branches would keep things in check? I wonder if they're still teaching that in school and, if so, whether they mention how absolutely wrong that theory turned out to be.
posted by mhum at 4:47 PM on June 28 [2 favorites]
posted by mhum at 4:47 PM on June 28 [2 favorites]
I hate to say it, but welcome to Louisiana. Courts have been writing environmental guidance for some time. and it is not good. There are many who die. This is because the administrative state is just a permit shield.
We have been dead and buried in the ground for some time, but we have had some success. Death is not the end.
I mean, you are correct to point out that, if independent study as below has success, Post-Chevron, we will be the last people to see these high tech monitoring trucks again for a while, as they will be deployed to some other state whose people are deemed more valuable. the social reality has always determined the physical reality of pollution. But hey, learn from our misery.
Check out this paper on how Shell and BASF have likely been lying to EPA, and EPA is cool with it, since the EPA existed, and definitely during the last 8 years that the EPA has focused on this pollutant::
Ethylene Oxide in Southeastern Louisiana’s Petrochemical Corridor: High Spatial Resolution Mobile Monitoring during HAP-MAP
Ellis S. Robinson, Mina W. Tehrani, Amira Yassine, Shivang Agarwal, Benjamin A. Nault, Carolyn Gigot, Andrea A. Chiger, Sara N. Lupolt, Conner Daube, Anita M. Avery, Megan S. Claflin, Harald Stark, Elizabeth M. Lunny, Joseph R. Roscioli, Scott C. Herndon, Kai Skog, Jonathan Bent, Kirsten Koehler, Ana M. Rule, Thomas Burke, Tara I. Yacovitch, Keeve Nachman, and Peter F. DeCarlo*
Cite this: Environ. Sci. Technol. 2024, 58, 25, 11084–11095
Publication Date:June 11, 2024
https://doi.org/10.1021/acs.est.3c10579
Researchers find higher levels of dangerous chemical than expected in southeast Louisiana
DeCarlo said that current regulatory figures on ethylene oxide levels are based on samples self-reported by the industry. Those numbers, he said, are “anywhere from two to 10 times lower than the values that we measured with our mobile laboratory in Louisiana.” And, in some areas tested, the new results were up to 20 times higher than the regulatory figures.
posted by eustatic at 8:31 PM on June 28 [9 favorites]
We have been dead and buried in the ground for some time, but we have had some success. Death is not the end.
I mean, you are correct to point out that, if independent study as below has success, Post-Chevron, we will be the last people to see these high tech monitoring trucks again for a while, as they will be deployed to some other state whose people are deemed more valuable. the social reality has always determined the physical reality of pollution. But hey, learn from our misery.
Check out this paper on how Shell and BASF have likely been lying to EPA, and EPA is cool with it, since the EPA existed, and definitely during the last 8 years that the EPA has focused on this pollutant::
Ethylene Oxide in Southeastern Louisiana’s Petrochemical Corridor: High Spatial Resolution Mobile Monitoring during HAP-MAP
Ellis S. Robinson, Mina W. Tehrani, Amira Yassine, Shivang Agarwal, Benjamin A. Nault, Carolyn Gigot, Andrea A. Chiger, Sara N. Lupolt, Conner Daube, Anita M. Avery, Megan S. Claflin, Harald Stark, Elizabeth M. Lunny, Joseph R. Roscioli, Scott C. Herndon, Kai Skog, Jonathan Bent, Kirsten Koehler, Ana M. Rule, Thomas Burke, Tara I. Yacovitch, Keeve Nachman, and Peter F. DeCarlo*
Cite this: Environ. Sci. Technol. 2024, 58, 25, 11084–11095
Publication Date:June 11, 2024
https://doi.org/10.1021/acs.est.3c10579
Researchers find higher levels of dangerous chemical than expected in southeast Louisiana
DeCarlo said that current regulatory figures on ethylene oxide levels are based on samples self-reported by the industry. Those numbers, he said, are “anywhere from two to 10 times lower than the values that we measured with our mobile laboratory in Louisiana.” And, in some areas tested, the new results were up to 20 times higher than the regulatory figures.
posted by eustatic at 8:31 PM on June 28 [9 favorites]
“The Money Coup,” Don Moynihan, Can We Still Govern?, 29 June 2024
posted by ob1quixote at 9:25 PM on June 28 [6 favorites]
posted by ob1quixote at 9:25 PM on June 28 [6 favorites]
What does this do to the voluminous administrivia that agencies perform? For instance, FERC emits dozens of tariff changes a week (my job 32 years ago was to babysit a script that dialed in & downloaded these by modem every weekday for the AGA and EEI). FCC and FAA have notices of proposed rulemaking (NRPMs) and comment periods and eventual rules issued.
If the enabling legislation didn't spell out all the details of how those processes are supposed to work does that mean, for instance, that a utility can raise rates with no oversight? How is a spectrum license supposed to be sold if acts that created the FCC don't spell it out?
posted by ASCII Costanza head at 10:24 PM on June 28 [3 favorites]
If the enabling legislation didn't spell out all the details of how those processes are supposed to work does that mean, for instance, that a utility can raise rates with no oversight? How is a spectrum license supposed to be sold if acts that created the FCC don't spell it out?
posted by ASCII Costanza head at 10:24 PM on June 28 [3 favorites]
The agencies still get to do all those things; it just means that a right-wing court, even a federal district court, gets to disregard/overturn an agency's pronouncements wholesale whenever it feels like it or whenever doing so would advance the court's preferred ideological (right-wing) outcomes.
They get to eat their cake and have it too.
posted by Gadarene at 12:03 AM on June 29 [6 favorites]
They get to eat their cake and have it too.
posted by Gadarene at 12:03 AM on June 29 [6 favorites]
The catastrophism in the comments above is out of hand; some contributions above suggest a serious misunderstanding of the nature and scope of what the Supreme Court did here.
The way it works is that Congress writes laws and agencies write rules that are supposed to implement the laws. Rulemaking requires agency interpretation, and sometimes that interpretation is controversial.
Until yesterday, Chevron required courts to defer to the agency’s interpretation of rules and statutes if they were reasonable. Post-Chevron, courts are no longer required to defer to agency interpretations any more. This should not be controversial if you think it’s the courts’ job to interpret the law.
This decision is future-looking, not past-looking. It doesn’t change past interpretations of regulations. And it seems to remove significant regulatory uncertainty from the system by encouraging future regulators to pay close attention to the statutes that their regulations are supposed to be based on. The notion that this injects uncertainty into the regulatory system is very strange.
Yes, it will result in courts having to do more work and interpret more statutes and regulations. I can live with it; that is their job.
posted by PaulVario at 5:09 AM on June 29 [1 favorite]
Yes, it will result in courts having to do more work and interpret more statutes and regulations. I can live with it; that is their job.Trump appointed hundreds of federal judges. A lot of them are unqualified lunatics.
Big companies can afford to keep funding cases that challenge administrative rules that they don't like until either forum shopping or luck gets one of them on a lunatic's docket.
posted by zymil at 5:33 AM on June 29 [14 favorites]
zymil: that is a great example of catastrophism. I promise, the behavior of unqualified lunatics on the bench is completely unaffected by Loper Bright. Previously, an unqualified lunatic on the bench would say: the agency’s interpretation of the rule is unreasonable, so I’ll substitute my more reasonable interpretation. Now an unqualified lunatic on the bench would say: I’m willing to give some deference to the agency’s interpretation, but I’m going to give more deference to my interpretation.
There are plenty of problems in the country. The fact that the law has been reformed so that judges can do their job is not one of them.
posted by PaulVario at 6:18 AM on June 29
There are plenty of problems in the country. The fact that the law has been reformed so that judges can do their job is not one of them.
posted by PaulVario at 6:18 AM on June 29
This bit from the Verge link General Malaise posted was interesting:
While the practice had been in place for decades before, it came to be known as Chevron deference after a 1984 case: Chevron v. NRDC. The Supreme Court ruled in favor of Chevron, allowing the Ronald Reagan administration’s industry-friendly Environmental Protection Agency to stick with a lax interpretation of the Clean Air Act.
So this new ruling, in addition to being generally bad, is partly just conservatives shifting their own bullshit back to the courts. Sigh.
posted by May Kasahara at 6:25 AM on June 29 [1 favorite]
While the practice had been in place for decades before, it came to be known as Chevron deference after a 1984 case: Chevron v. NRDC. The Supreme Court ruled in favor of Chevron, allowing the Ronald Reagan administration’s industry-friendly Environmental Protection Agency to stick with a lax interpretation of the Clean Air Act.
So this new ruling, in addition to being generally bad, is partly just conservatives shifting their own bullshit back to the courts. Sigh.
posted by May Kasahara at 6:25 AM on June 29 [1 favorite]
PaulVario - do you disagree that the aggregate result of many recent SCOTUS rulings is a transfer of power from the executive agencies staffed by career civil servants with subject matter knowledge to the judicial branch, staffed largely by political appointees?
Because I'm pretty sure that is the trend people are catastrophizing about, so while I agree some of the reactions I've seen are a bit overwrought, discussing the ruling in Loper Bright as though it isn't part of an overall shift in what powers the court is claiming for the judiciary doesn't seem like very helpful analysis either.
posted by the primroses were over at 6:36 AM on June 29 [8 favorites]
Because I'm pretty sure that is the trend people are catastrophizing about, so while I agree some of the reactions I've seen are a bit overwrought, discussing the ruling in Loper Bright as though it isn't part of an overall shift in what powers the court is claiming for the judiciary doesn't seem like very helpful analysis either.
posted by the primroses were over at 6:36 AM on June 29 [8 favorites]
This is without question a bad, unnecessary and harmful decision. But I do think the effects of replacing Chevron with Skidmore are being a bit overstated (for reasons that should be obvious to any survivor of the nonprofit industrial complex). Courts have done what they wanted all along, either ginning up ambiguities where they don't exist or ignoring them where they do; this mostly just changes the language they'll use while doing that. Of course this is of a piece with the court's whole destructive agenda and will be used in service of that -- but that agenda was ongoing regardless.
This 2020 law review article (PDF) found 25 states applying either Skidmore or pure de novo review.
It does not strike me that California, for example, has seen "the end of the administrative state," but maybe I missed it.
posted by Not A Thing at 7:03 AM on June 29 [3 favorites]
This 2020 law review article (PDF) found 25 states applying either Skidmore or pure de novo review.
It does not strike me that California, for example, has seen "the end of the administrative state," but maybe I missed it.
posted by Not A Thing at 7:03 AM on June 29 [3 favorites]
primroses — eh, if you want my opinion, I guess I have some disagreements with the way you’re framing things.
A big problem that Chevron has caused is that it results in regulators being politicized policymakers. They’re not supposed to make policy; they’re supposed to interpret the statutes that Congress produces. But with respect to the agency I’m most familiar with, every four years, the leadership changes. Because of that, the rules the agency promulgates have everything to do with who is in charge: the politically appointed agency heads. Sometimes the career civil servants don’t like what the political appointees do; sometimes they fight the agency heads; but when it comes down to it, the civil servants lose. What matters is not who staffs these agencies; what matters is who runs them, and I think it’s a misdescription to suggest that the agencies are run by politically neutral operators. The rules the agency promulgates swing wildly back and forth in a way that follows the election returns. Now that Chevron is dead, this problem should die as well.
So I guess you can say that Loper Bright is a transfer of power to the judiciary. But that isn’t especially troubling to me: in this case, it’s a power that the judiciary should hold, because executive agencies really shouldn’t be exercising legislative and judicial powers.
If the concern is that there’s a larger trend of assignment of power to the judiciary, maybe that’s true, but the question really should be: which powers ought the judiciary to have? Earlier this week, the Supreme Court decided that some guy who’d been hit with a six-figure criminal penalty for fraud had been unjustly punished because he’d been denied his right to a jury trial. The defendant’s punishment was an outrage; the court decided the right way (IMO). Some people described this as a terrible constraint on regulators, and I guess it’s true that it’s much easier for regulators to punish defendants if you get rid of everyone’s Seventh Amendment rights; and I guess it’s true that you could describe the Supreme Court’s change as a transfer of power to the judiciary; but if courts are going to guarantee people their rights after regulators take them away, I think that’s a good thing. It is anything but catastrophic. In short, the transfer of power to the judiciary is a good policy if it it is needed so that judges can do their job!
posted by PaulVario at 7:49 AM on June 29 [3 favorites]
A big problem that Chevron has caused is that it results in regulators being politicized policymakers. They’re not supposed to make policy; they’re supposed to interpret the statutes that Congress produces. But with respect to the agency I’m most familiar with, every four years, the leadership changes. Because of that, the rules the agency promulgates have everything to do with who is in charge: the politically appointed agency heads. Sometimes the career civil servants don’t like what the political appointees do; sometimes they fight the agency heads; but when it comes down to it, the civil servants lose. What matters is not who staffs these agencies; what matters is who runs them, and I think it’s a misdescription to suggest that the agencies are run by politically neutral operators. The rules the agency promulgates swing wildly back and forth in a way that follows the election returns. Now that Chevron is dead, this problem should die as well.
So I guess you can say that Loper Bright is a transfer of power to the judiciary. But that isn’t especially troubling to me: in this case, it’s a power that the judiciary should hold, because executive agencies really shouldn’t be exercising legislative and judicial powers.
If the concern is that there’s a larger trend of assignment of power to the judiciary, maybe that’s true, but the question really should be: which powers ought the judiciary to have? Earlier this week, the Supreme Court decided that some guy who’d been hit with a six-figure criminal penalty for fraud had been unjustly punished because he’d been denied his right to a jury trial. The defendant’s punishment was an outrage; the court decided the right way (IMO). Some people described this as a terrible constraint on regulators, and I guess it’s true that it’s much easier for regulators to punish defendants if you get rid of everyone’s Seventh Amendment rights; and I guess it’s true that you could describe the Supreme Court’s change as a transfer of power to the judiciary; but if courts are going to guarantee people their rights after regulators take them away, I think that’s a good thing. It is anything but catastrophic. In short, the transfer of power to the judiciary is a good policy if it it is needed so that judges can do their job!
posted by PaulVario at 7:49 AM on June 29 [3 favorites]
I would be less worried about the consequences of the Court's decisions if the federal judiciary was in any way prepared for the vast amount of litigation that is going to result. The overturning of Chevron opens the gate for a lot more cases to be filed to challenge agency interpretations which might until now have been left in place. But the courts are already swamped, and SCOTUS in particular isn't big enough or well-staffed enough--and doesn't have the technical expertise to make these calls even if it was three times the size.
Which even if only 30% of those cases go against the government results in an increase in the judicial caseload, and also a diversion of judicial and agency resources away from their actual work and into litigation defense. It also requires a lot more up-front work to make agency findings bulletproof (inasmuch as they can be), which is also a diversion of resources.
Add to that the fact that SCOTUS has a recent history of ignoring the factual findings from the lower courts -- I'm not confident.
Things are going to happen slowly; but the change will be felt.
posted by suelac at 7:59 AM on June 29 [6 favorites]
Which even if only 30% of those cases go against the government results in an increase in the judicial caseload, and also a diversion of judicial and agency resources away from their actual work and into litigation defense. It also requires a lot more up-front work to make agency findings bulletproof (inasmuch as they can be), which is also a diversion of resources.
Add to that the fact that SCOTUS has a recent history of ignoring the factual findings from the lower courts -- I'm not confident.
Things are going to happen slowly; but the change will be felt.
posted by suelac at 7:59 AM on June 29 [6 favorites]
but if courts are going to guarantee people their rights after regulators take them away, I think that’s a good thing.
The problem is that some people think they have a right to dump any externalities into the public sphere. That's not a right I want people to think that they have and they shouldn't have it.
In short, the transfer of power to the judiciary is a good policy if it it is needed so that judges can do their job!
The thing is, judges can't do the job. They by and large don't have subject matter expertise. (see: nitrous oxide vs nitrogen oxides.) It becomes who has the most persuasive argument for the judge at the time at that's not a way I want "are these wetlands" or "is this actually a pollutant" decided.
It's not like there's any sort of difference in accountability. Both agency heads and Article III judges are politically appointed positions. The difference is that regulatory agencies, despite their frequent regulatory capture, at least have a chance of seeing dedicated civil servants working with the science for the betterment of people as a whole. The judiciary at this point is just a first approximation of politics.
posted by Your Childhood Pet Rock at 7:59 AM on June 29 [12 favorites]
The problem is that some people think they have a right to dump any externalities into the public sphere. That's not a right I want people to think that they have and they shouldn't have it.
In short, the transfer of power to the judiciary is a good policy if it it is needed so that judges can do their job!
The thing is, judges can't do the job. They by and large don't have subject matter expertise. (see: nitrous oxide vs nitrogen oxides.) It becomes who has the most persuasive argument for the judge at the time at that's not a way I want "are these wetlands" or "is this actually a pollutant" decided.
It's not like there's any sort of difference in accountability. Both agency heads and Article III judges are politically appointed positions. The difference is that regulatory agencies, despite their frequent regulatory capture, at least have a chance of seeing dedicated civil servants working with the science for the betterment of people as a whole. The judiciary at this point is just a first approximation of politics.
posted by Your Childhood Pet Rock at 7:59 AM on June 29 [12 favorites]
Also, agency heads (and directives from the executive administration) can be changed when a new administration is elected in. So at least in theory if an administration really fucks things up, voters can say “actually no” and elect someone else in 4 years. Whereas judges are there for life, so a single fuckheaded administration screws things up for decades with no electoral recourse.
posted by misskaz at 8:29 AM on June 29 [7 favorites]
posted by misskaz at 8:29 AM on June 29 [7 favorites]
a right-wing court, even a federal district court, gets to disregard/overturn an agency's pronouncements wholesale whenever it feels like it or whenever doing so would advance the court's preferred ideological (right-wing) outcomes
Again, it s been this way in the 5th Circuit for a decade at least, this is why Louisiana Parishes are suing ExxonMobil in state courts and not federal courts.
posted by eustatic at 9:18 AM on June 29 [4 favorites]
Again, it s been this way in the 5th Circuit for a decade at least, this is why Louisiana Parishes are suing ExxonMobil in state courts and not federal courts.
posted by eustatic at 9:18 AM on June 29 [4 favorites]
If I were designing the government from the ground up, maybe I would define each regulatory agency as hybrid institutions that each partly exist under both the executive branch and judicial branch (or for that matter, each agency exists partly under all three branches of government, such that they can legislate, execute, and interpret in a specific domain in a very constrained manner, because that—regulation—is the only way to manage social externalities). This could help minimize the drawbacks of technocracy by providing a natural check and balance for each specialist institution. An agency's hybrid existence also removes the pretext of the judiciary claiming that executive agencies have too much power.
But that is not the reality, which is that the right-wing dominated supreme court is using Chevron deference as a pawn to further its agenda of social destruction. Instead of treating Chevron as possibly having a missing staircase and repairing or reforming it, they just want to remove the staircase below them so nobody can go upstairs that way.
posted by polymodus at 2:50 PM on June 29 [1 favorite]
But that is not the reality, which is that the right-wing dominated supreme court is using Chevron deference as a pawn to further its agenda of social destruction. Instead of treating Chevron as possibly having a missing staircase and repairing or reforming it, they just want to remove the staircase below them so nobody can go upstairs that way.
posted by polymodus at 2:50 PM on June 29 [1 favorite]
This decision is future-looking, not past-looking. It doesn’t change past interpretations of regulations. And it seems to remove significant regulatory uncertainty from the system by encouraging future regulators to pay close attention to the statutes that their regulations are supposed to be based on. The notion that this injects uncertainty into the regulatory system is very strange.
That's certainly what the Court's opinion says, but I can tell you with 100% certainty that litigants are going to ignore the court's invocation of statutory stare decisis. I have that certainty because, as one of those litigants, it took me all of 4 hours after the opinion came out for me to finish writing a memo about why that stare decisis paragraph doesn't apply to us. How can lower courts possibly say "we are going to ignore the first 34 pages of this opinion and continue to uphold this now-unlawful regulation using the wrong legal standard, because of two throwaway, wishful-thinking paragraphs that aren't actually the holding of the case"?
But here's the more fundamental thing: disputes over regulations are rarely the result of regulators simply not "paying close attention to the statutes." As an example: there's a statute that gives a certain benefit to qualifying caregivers of "seriously disabled" veterans. The statute doesn't define "seriously disabled." No amount of "paying attention to the statute" would define it for you. The Department of Veterans Affairs has decided it means veterans who have a VA disability rating of at least 70%, which a lot of people disagree with. But is it really better for a single judge (or at most three judges) to say, hmm, I think the best reading of the statute is 50%, or 100%, or only someone who qualifies for nursing home care, or whatever else the judge thinks is the best definition of "seriously disabled"? The Administrative Procedure Act doesn't tell judges to pick their own best interpretation of the statute -- it tells them to "set aside" any unlawful regulation, but the Loper Bright decision seems to instruct courts to go all the way to end and choose a best answer rather than just set aside a regulation when the agency picked a bad one.
Even if you trust judges to pick a definition of "seriously disabled," what is that if not policymaking?
You might say that judges are the best people to interpret any statutory language that exists in the entire U.S. Code, because that is their job and they can interpret difficult and thorny legal phrases. But the same line-up of justices who decided Loper Bright made the exact opposite argument in one of the other opinions issued the same day. In the Grants Pass decision, the Court stated that they have no special expertise or ability to figure out what makes shelter "practically available" or not, which is why they can't possibly find that it's cruel and unusual punishment to punish people for not using shelter that doesn't exist. If courts can't figure out what "practically available shelter" is when both parties agree that there aren't enough beds for all the homeless people in Grants Pass, good luck to courts trying to interpret the contours of every statute, many of which are far trickier than that.
posted by alligatorpear at 3:07 PM on June 29 [11 favorites]
That's certainly what the Court's opinion says, but I can tell you with 100% certainty that litigants are going to ignore the court's invocation of statutory stare decisis. I have that certainty because, as one of those litigants, it took me all of 4 hours after the opinion came out for me to finish writing a memo about why that stare decisis paragraph doesn't apply to us. How can lower courts possibly say "we are going to ignore the first 34 pages of this opinion and continue to uphold this now-unlawful regulation using the wrong legal standard, because of two throwaway, wishful-thinking paragraphs that aren't actually the holding of the case"?
But here's the more fundamental thing: disputes over regulations are rarely the result of regulators simply not "paying close attention to the statutes." As an example: there's a statute that gives a certain benefit to qualifying caregivers of "seriously disabled" veterans. The statute doesn't define "seriously disabled." No amount of "paying attention to the statute" would define it for you. The Department of Veterans Affairs has decided it means veterans who have a VA disability rating of at least 70%, which a lot of people disagree with. But is it really better for a single judge (or at most three judges) to say, hmm, I think the best reading of the statute is 50%, or 100%, or only someone who qualifies for nursing home care, or whatever else the judge thinks is the best definition of "seriously disabled"? The Administrative Procedure Act doesn't tell judges to pick their own best interpretation of the statute -- it tells them to "set aside" any unlawful regulation, but the Loper Bright decision seems to instruct courts to go all the way to end and choose a best answer rather than just set aside a regulation when the agency picked a bad one.
Even if you trust judges to pick a definition of "seriously disabled," what is that if not policymaking?
You might say that judges are the best people to interpret any statutory language that exists in the entire U.S. Code, because that is their job and they can interpret difficult and thorny legal phrases. But the same line-up of justices who decided Loper Bright made the exact opposite argument in one of the other opinions issued the same day. In the Grants Pass decision, the Court stated that they have no special expertise or ability to figure out what makes shelter "practically available" or not, which is why they can't possibly find that it's cruel and unusual punishment to punish people for not using shelter that doesn't exist. If courts can't figure out what "practically available shelter" is when both parties agree that there aren't enough beds for all the homeless people in Grants Pass, good luck to courts trying to interpret the contours of every statute, many of which are far trickier than that.
posted by alligatorpear at 3:07 PM on June 29 [11 favorites]
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