Chevron was controversial at the time it was introduced as well. The notion that courts weren’t the ultimate arbiters of what legal rules actually mean, but that judges have to defer to the legal interpretations of an executive branch agency, was not uncontroversial. It wasn’t entirely novel—some idea that agencies should get some sort of deference has been percolating around since basically the advent of the administrative state. And frankly, getting rid of Chevron won’t really end the debate either.
Ultimately, there’s two different strands to the issue. On one hand, it makes no sense to say that administrative agencies (who aren’t even necessarily staffed by lawyers) should get deference on interpretative questions regarding things like agency jurisdiction. Chevron says agencies get deference in determining their own jurisdiction and that’s batty. On the other hand, there’s an attractive principle in there that where Congress makes these highly technical statutes making trade offs about particular matter controls the agency should have discretion in figuring out how to implement those directives.
>The court’s ruling could have ripple effects across the federal government, where agencies frequently use highly trained experts to interpret and implement federal laws.
I'm pretty skeptical that this is true. Who is training them? Training them in what? Reading laws and navigating bureaucracy?
More ...
>Kagan cited as one example a hypothetical bill to regulate artificial intelligence. Congress, she said, “knows there are going to be gaps because Congress can hardly see a week in the future.” So it would want people “who actually know about AI and are accountable to the political process to make decisions” about artificial intelligence. Courts, she emphasized, “don’t even know what the questions are about AI,” much less the answers.
I'm not following why Kagan thinks this hypothetical helps her point. People who know about AI and are accountable to the political process are not bureaucrats in the federal agencies just as much as they are not the courts. I'll wait for the audio/transcript to come out because hopefully this is a misrepresentation of her question.
The government hires experts. See the example discussion in the post about regulating AI. Or think about the FDA, in the case of drugs, or the CIA for intelligence, the NSA for security (the A in the last two stands for Agency, which were so far covered by Chevron.)
Sure, no one denies that the government hires experts. The people who have a problem with Chevron deference would question if those "experts" have the ability to make rules outside of what congress actually set out to regulate.
The question in these cases is if those experts can interpret the ambiguity in a statute to make rules that may or may not have actually been the intent of congress. Personally, I think the answer should be "no".
How do you know the intent of congress? Are you going to ask them about every ambiguity in a law? Why shouldn't experts in the relevant areas make their best determination?
Do you have examples you're concerned about where Chevron doctrine is a problem?
Seems strange for these fisherman to sue for relief and suddenly agencies no longer have the ability to interpret the laws that apply to them.
The intent of congress should be clear from the laws they write. If laws are ambiguous the doctrine of contra proferentem should be preferred as it is in contract law.
In the constitution, congress is tasked with making laws, not "experts" if there is such a thing. If congress wants expert opinion they can invite them to testify and then write the law instead of this end run around legislating.
> Why shouldn't experts in the relevant areas make their best determination?
Because experts are often myopic and terrible policy makers. Also experts hired by federal agencies will likely tend to favor interpretations that the agency prefers.
Sure, the ATF allowed "pistol braces" over a decade then suddenly decided they were illegal. The ATF decided they would "reinterpret" very clear definition of what a machine gun was. A person has been put in prison for selling an uncut stencil of an automatic seer (basically a drawing on a metal credit card), which by definition isn't a machine-gun.
And of course this example being discussed. There are probably many more we haven't heard about. You can agree or disagree with these policies, but they need to be voted on by congress. These agencies seem to be out of control and should be reigned in. Checks and balances are important.
The ATF examples are egregious, they issue letters of determination that pistol braces are permissible for a decade, then rescind and overnight make all buyers felons.
But they are not the only agency that is evil, the CDC asserting the right over all housing in the US to prevent evictions was insane. The FDA not allowing terminal patients who have exhausted all other treatment options to try anything experimental. The list goes on.
If the intent of Congress is clear Congress can simply pass a law to clarify that.
Congress does exist. If an agency is acting against the will of Congress Congress can immediately stop it.
You don’t need courts to come in and tell the agency what Congress means when Congress is right there and meets far more often than the courts and has a much quicker process than the courts, where decisions may go up the court chain all the way up to the supreme court.
>If the intent of Congress is clear Congress can simply pass a law to clarify that. Congress does exist. If an agency is acting against the will of Congress Congress can immediately stop it.
Congress is different every year. The totality of congress members that negotiated and passed the law is likely no longer seated. Also this suggestion completely circumvents presidential veto power. It's also highly prone to abuse.
>You don’t need courts to come in and tell the agency what Congress means when Congress is right there and meets far more often than the courts and has a much quicker process than the courts, where decisions may go up the court chain all the way up to the supreme court.
That's literally what the SCOTUS is for, to interpret laws.
Other commenters posted good responses IMHO. My statement wasn’t due to any particular incident or axe to grind. It’s my observation of groupthink among experts in both sciences and public policy.
Specifically recently I was affected by shortages of stimulant medications for treatment of ADHD. These shortages appeared to be due to secret DEA limits. Generally Americans getting these medications are treated like suspects first and foremost, in part due to the DEAs pressure on pharmacies.
Here’s one of the experts describing it:
> The exact limit for each
> pharmacy is kept secret in
> order to prevent pharmacists
> from gaming the system,
> according to Krista Tongring,
> leader of the DEA compliance
> practice at Guidepost
> Solutions and a former agency
> attorney.
Note the original problem to be solved was opioid overprescribing. Instead of solving that issue directly the DEA experts decided to restrict all controlled substances with murky limits for unclear reasons. Certainly not to help Americans with ADHD, narcolepsy, anxiety, or a host of other genuine and often debilitating conditions.
The DEA’s only concern is “suspicious orders” and limiting the drugs. Hence a case of one set of experts being myopic in the face of the broader health care system in the US.
While many wish to live in some fantasy world (hello Libertarians) in our current system, getting rid of the Chevron doctrine will effectively lead to greatly increased deregulation of industry, which will have many serious undesirable side effects, and which will mainly benefit industry and the wealthy and the expense of ordinary citizens.
It's also impractical. Agencies need the ability to move quickly to deal with new threats and technologies without waiting for a paralyzed congress to pass laws to deal with new or even existing problems. (I assume Congress would speak w experts anyway).
That said, of course, in an ideal world, experts would be heeded and cynical politics would not play a part in science-based policy decisions (e.g. how much PFA to allow in drinking water). But that's not the world we live in. We need regulation and experts and we need to improve on the system we have, but not eliminate the Chevron doctrine.
This viewpoint is utterly divorced from reality. I recommend you go readChevron. The case itself was a massive win for deregulation under Reagan, and overturned a D.C. Circuit opinion by Ruth Bader Ginsburg that invalidated an EPA rule loosening environmental protections just because there was a new administration.
This take is completely wrong. Every quote of the SCOTUS justices is done to make a particular point. I would recommend that you go read Chevron, the amicus briefs, the oral argument, and then do the same for the current cases (there are two) for this round.
It's interesting to me that you find partisan political op-eds by non-attorneys persuasive on a highly technical legal subject. Not the choice I would have made.
> without waiting for a paralyzed congress to pass laws to deal with new or even existing problems
ah yes so all the technocrat experts who are undoubtably part of the revolving door between industry & government should just be policing themselves justified by "emergency" exigencies
why are people so keen to defend regulatory capture as not only inevitable but seemingly good?
Have you read a bill before? Usually they state this upfront. They often name the bill after the thing they intend to address.
>Are you going to ask them about every ambiguity in a law?
Me personally, no. But people who are affected buy it? Yes. And that is a good thing.
>Why shouldn't experts in the relevant areas make their best determination?
Because, in this country, laws are not made by bureaucrats. Bureaucrats who get appointed by the executive branch, which is elected only once very 4 years. You see where I am going with this.
>Do you have examples you're concerned about where Chevron doctrine is a problem?
The two examples in the linked article are good enough. That you are asking this suggests you haven't read the briefs or listened to oral argument.
>Seems strange for these fisherman to sue for relief and suddenly agencies no longer have the ability to interpret the laws that apply to them.
Literally not what's going on here. If Chevron is torpedoed the agency discretion, that people like for reasons I don't understand, is now at the behest of Congress. If these fishermen win, it means that when congress writes laws they have to actually tell the executive what to do. Which is how it was supposed to be when this country started.
Some people like the idea of unnamed and unaccountable "experts" making their rules for them, but personally I much like the idea of those people not getting too big for their britches.
That part is completely how the US process works. First, cases rarely make it to the supreme court without being tested here and there before (so, it's not suddenly). Second in the US "someone" has to bring a case but their role is largely a placeholder (a few fishing companies works fine if their case is a clean illustration of the problem). Third this is a major decision - whether to use this way of doing things or that - it was at the time and it is now so yeah if the court changes its mind (which it has to be able to do), then that changes how things work. Nothing extraordinary there but the US system in operation.
And the government can present these experts in court, and have them go against the other side's experts. The experts are not going away whichever way is decided.
Cabinet members and some others can be fired by the president. Those that cannot be fired serve a fixed term when they are appointed by the President and they then have to be confirmed by the Senate.
Government bureaucrats only hire other people who agree with them as that is in the interests of their job security. Shrinking the government is vital to allowing new ideas air to breathe.
I agree with you, which is why it's interesting to see the court divided based on its typical conservative/liberal line.
To me, it's fundamentally about the separation of powers. Why, in this case, should the executive branch be given the power to interpret ambiguous laws, when that duty normally falls to the judicial branch?
The response seems to be that the executive branch has some special expertise that makes them better suited.
But courts routinely call in expert witnesses; as Justice Alito pointed out in the hearing, there are methods for resolving ambiguity when Chevron does not apply. So I could see a ruling that basically says, "Sure, we'll make use of the administration's expertise -- as testimony, not as a substitute for judges."
>Why, in this case, should the executive branch be given the power to interpret ambiguous laws, when that duty normally falls to the judicial branch?
Because the court isn't nimble enough to do otherwise - they can take decades to even accept a case that may have real-world ramifications while they (sometimes intentionally) defer to even hear the case. Regardless of the theoretical discussion of who should own the decision, the reality of this decision will be corporations pillaging public goods (land/air/water) further than they already have because there will be no ability for the EPA and others to even have oversight of what they're doing.
"But the law" won't really matter when your only option for drinking water is to go buy it from the store. We've seen:
Corporations won't police themselves, even when it means doing otherwise kills people because it turns out the government never seems to penalize harshly enough to make that a profit-losing situation.
Congress is perfectly happy ignoring issues unless it's politically inconvenient, even if they would all agree in private that the issue should probably be fixed. Heck often times they'll take a position they don't even believe just to be a contrarian.
You've outlined the problems with entrusting the judicial branch and legislative branch handle these issues.
But what about the problems with entrusting the executive branch, which can turn over every four years? We've had two very different presidents over the past 8 years. The agencies (such as the EPA) that you are entrusting to protect the things you value may actually be given very different directions, depending on who's in office.
But the specific reasoning of the arguments in the suit, and the arguments in the decision and dissent, will very much be of a liberal or conservative bent.
The easy way our for a lazy congressman is to copy-and-paste the current regulations into a bill (all of them,) sponsor it, and get it passed by the end of the week.
Then submit another bill that makes it the duty of the commissioner of the blah-blah agency to submit a bill to congress every year that fixes whatever problems (s)he thinks need fixing. Give them a budget for a couple of lawyers to do the drafting and suggest they have an internal email address for employees to suggest changes to the lawyers. When the proposed bill is submitted by the commissioner, it goes onto the public record and the public has 180 days to comment. After that, whatever party is in power will take the parts they like, combine it with verbage from the lobbyists who pay for their vacations, and sponsor that bill.
Yes, this introduces more delays into The System. I wish we (in the USA) would pass a constitutional amendment saying all laws must be published with markup for the dates changes take effect, so we can see what changes are coming soon. I also wish all new laws had to be published at least 1 year before they can take effect.
Regardless of which side of the political aisle you’re one, this Court is going to get one of the thicker chapters in the history books with all the precedents they have, or expected to, overturn.
Roberts had a reputation of wanting his Court to maintain respect as a neutral party. I wish I could hear his private thoughts on the Court nowadays
I feel the structure of the US since the New Deal is an aberration, and the court has simply refrained from doing inconvenient things, contorting itself to avoid doing disruptive inconvenient things. That wasnt a partisan view in my world, just an obscure one, until the only ones willing to match that view were extremely partisan.
This court has expressed and shown that it wont refrain from doing disruptive, inconvenient things and I haven't found any of its decisions to be contortions or surprising, after having read those decisions
I often feel like the narrative is the opposite of what I perceive, the media and people that want a different outcome say “they’re legislating from the bench!” when I see the prior court acting like a super congress with entire multipronged frameworks, and this court saying “yeaaaaahhh voters and elected representatives should decide that” whether there is a consensus failure or not, forcing consensus to be made where it was avoided indefinitely. I just dont see that as extreme, extreme would have been it using its privilege to say “yeah that's banned now across the whole republic” and they dont do that, its all quite professional
I dont know man, they are just waiting for someone to bring challenges to every remaining vestige of the New Deal and its expanded interpretation of interstate commerce, given that the 1930s court struck down most of the New Deal until it was threatened, I dont really find finishing the job to be so extreme, just unfamiliar because we were all raised post-New Deal
>I feel the structure of the US since the New Deal is an aberration, and the court has simply refrained from doing inconvenient things, contorting itself to avoid doing disruptive inconvenient things. That wasnt a partisan view in my world, just an obscure one, until the only ones willing to match that view were extremely partisan.
>This court has expressed and shown that it wont refrain from doing disruptive, inconvenient things and I haven't found any of its decisions to be contortions or surprising, after having read those decisions
What I expect the court to do is leave absences of law, because Congress or the states neglected to create durable consensus.
Its a predictive quality, instead of one based on feelings. Until I bring a case myself, I’m not arguing or advocating for anything, just listening far better than someone using their energy to protest something they have no control over.
Your example, although I consider it a strawman, I think also shows that even what people believe about this current court is not unique. If they dont like this court, they really wouldnt have liked that court.
Almost nobody alive today remembers America before the New Deal. We've lost the institutional memory of what works and doesn't work in that environment. It is very much a radical position to undo the New Deal consensus.
yes, but if you study US history its like a distortion field has been pulled up, where the President that got the New Deal passed is heralded in all history books for every action he ever did, while in reality most of his New Deal got struck down by the courts and he threatened to pack the court with his people. Like... what? And everything that's left over has been used to control all facets of life, subjugate all states with an interpretation of all commerce being interstate commerce, with any state level autonomy being a gift from Congress if they remembered to include an intrastate exemption
Its a "federal government" by name alone as there is no federalism left. Federalism could be interesting. It will have redundancies, wild differences. But that's the actual country we herald in our history books while we've done something else for the last 100 years.
The court has even expressed interest in going back further: revisiting the insular cases - the status of many of our territories and whether we should possess them at all - for reasons I find extremely universally agreeable, nowadays. If you read the SCOTUS decisions from 1901 they are super racist reasons why we have our territories. The only reason people would disagree is because they either haven't read them or they want to avoid the inconvenience. The constitution doesn't say "if its inconvenient ignore these articles, amendments and don't interpret me". Self determination is decided by the people of the territory in coordination with Congress.
so our radical court is going to undo racist rulings and disrupt an American colonizer streak? bring the cases, the challenge to a territory's status will probably even come from the left once people catch on with the most productive way to operate with this court
I get it, its a paradoxical standard, yes, its radical to do something we're all unfamiliar with. yes, a political entity with the adjective radical is a radical political entity. but are we using this in the colloquial way of illegitimate? no, not at all.
a narrower interpretation of the interstate commerce clause would disable many aspects of the federal governments agency system and require a different legal rationale from Congress if the people want to continue them, I don’t know how those specific examples you mention fall into that and it isn’t an argument for anything specific except an interpretation more congruent with federalism
I’m arguing for more durable consensus. Look at the accession process of Texas versus a territory with Hispanics, Pacific Islanders or Asians, and see how many steps were done in the former versus how many were skipped in the latter. Do those steps and accept any outcome. I’m not arguing for any specific outcome of an areas status.
>> this Court is going to get one of the thicker chapters in the history books with all the precedents they have, or expected to, overturn
This is false. The Roberts court has overruled previous decisions less often than previous courts, not more often. It will have one of the thinnest chapters in the history books, not one of the thickest.
The Burger court overruled more decisions from 1969 to 1975 than the Roberts court has since it began in 2005. The Warren court has the thickest chapter in the history books. It overruled decisions at a higher rate than even the Burger court.
I am guessing that the real difference is that you agree with the major decisions of the Warren, Burger, and Rehnquist courts, and disagree with the major decisions of the Roberts court.
Nah, went through what 18 years of relatively little rocking the boat in overturning precedence and then overturning roe v wade and now the chevron defense in 2-3 years? Maybe the courts history as a whole has less overturning but these past few years have been markedly faster
Planned Parenthood v. Casey overturned parts of Roe v. Wade. That was in 1992 under the Rehnquist court. If overturning precedence is bad, the Rehnquist court is bad for overturning parts of Roe v. Wade.
Don’t believe it did. Feel free to explain. You know I’m referring to Dobbs and the implied chevron defense overturning in a short period after that political makeup of the court fundamentally changed.
Roberts is pretty open in his opinions. I doubt that his private thoughts differ much from what he writes in his dissents or concurrences. Unless you mean court gossip, which is probably at a minimum today since we still don't know who leaked the Dobbs opinion.
I've never understood this position from him. I'll admit that I've never read anything he's written about it so I'm probably speaking out of turn, and that there is a surprising death to this view that I'm not seeing because I haven't seriously looked into it, at least not from his perspective.
That said, I'm not sure where someone could come to the conclusion that the court should remain neutral when courts, especially the Supreme Court, mark the point where a dispute is resolved not in terms of how to follow the existing law, but why the existing law is the way it is, and whether it should be patchedto reflect a new understanding of why our values are what they are. The "correct" place to do this is of course in the legislature, but it moves on a comparatively glacial time frame and in some cases can never come to a clear actionable position on issues in a timely manner, while harms are actively taking place without remedy.
The neutral stance is implicitly conservative, disregarding changes in our understanding of why we value what we value, and instead focusing on mechanical details of how to paper over ever widening disparities, constantly pointing at the legislature to sort them out. If the court had the power to force legislature to come to a decision one way or the l other it would be different I suppose, but this would of course put the Court under the legislature, defeating the purpose of separated powers.
I acknowledge that the issue is quite complex. still from the outside, to put it bluntly, his stance looks like a rationalization to shirk an essential responsibility he has been uniquely entrusted with.
Ultimately, there’s two different strands to the issue. On one hand, it makes no sense to say that administrative agencies (who aren’t even necessarily staffed by lawyers) should get deference on interpretative questions regarding things like agency jurisdiction. Chevron says agencies get deference in determining their own jurisdiction and that’s batty. On the other hand, there’s an attractive principle in there that where Congress makes these highly technical statutes making trade offs about particular matter controls the agency should have discretion in figuring out how to implement those directives.