Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
Just like congress can legislate abortion laws rather than leaving it to judicial precedence.
Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
>Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
It would literally be impossible for congress to make a law covering every single nuance agencies are tasked with. This Supreme Court knows it. This is nothing more than deregulation on a scale not seen in modern American history. When you can’t find clean drinking water in 30 years, this will be why.
This case is about whose interpretation gets to fill in the gaps.
The statute (APA) requires courts to form an independent judgment about the gaps.
The Chevron doctrine required courts in certain cases to set this judgment aside in favor of an agency’s judgment—-basically on the basis that the agencies are closer to the problems and know better.
This setting aside may be the better outcome, however it is not explicitly specified in the statute (APA).
Ultimately, if Congress wants this to be the case, they /can/ amend the statute (APA), effectively enshrining the Chevron doctrine.
At the end of the day, the court’s decision here rests on statutory interpretation (not constitutional doctrine) so Congress could change the outcome by amending the statute (APA) to explicitly codify Chevron. This would be achieved with its ordinary legislative power (Article 1 Section 7 of the Constitution).
The court’s decision does effectively put the ball back in Congress’ court.
> It would literally be impossible for congress to make a law covering every single nuance agencies are tasked with.
What does that even mean? Supposedly these agencies already know what they're tasked with, no? If not... well I mean that's straight up irresponsible.
The other part of this I don't get is that people have been complaining about the "Revolving Door" problem in these agencies for a long time now. They're not sacred, and further we know they're not sacred because we've been complaining about their corruption. So why pretend they're sacred now? Why are there no solutions?
The problem with a lot of the called "progressives" is that they've adhered to a different kind of conservatism, where while the ideals are progressive, every single instance of actually implementing those ideals are conservative and play to old power structure.
> > It would literally be impossible for congress to make a law covering every single nuance agencies are tasked with.
> What does that even mean? Supposedly these agencies already know what they're tasked with, no? If not... well I mean that's straight up irresponsible.
It means the supreme court just gutted the agencies ability to make and enforce regulations. The agencies have lots of experts who know what they're supposed to be regulating they just aren't allowed to do that in many cases now. Unless congress writes things explicitly into law you can expect legal challenges to just about any regulation the agencies try to put forward.
> The other part of this I don't get is that people have been complaining about the "Revolving Door" problem in these agencies for a long time now. They're not sacred, and further we know they're not sacred because we've been complaining about their corruption. So why pretend they're sacred now?
Why do you think these two issues are opposed? The answer to weak and lax regulation isn't to remove the ability to regulate.
> Why are there no solutions?
What solutions are you proposing? Do you think your solutions have any chance of getting anywhere in the current political climate? Who benefits from the status quo and how much effort will they put in to block a solution?
This is the typical response to demanding actual action. It's a litany of excuses that both decries ineptitude and at the same time expresses satisfaction with it. It's ridiculous.
Ultimately I hope everyone that shares this sentiment really tries to introspect, read what they write/say, and see how deeply flawed the arguments are. It directly leads to strategic blunders.
In all honesty what does it really take for people to see the reality of their situation?
The left no longer has any will whatsoever, no courage, no real "revolutionary" spirit at all. It is decrepit, meek, and unwilling to change because it's paralyzed by fear (and that's being generous). It has no real political positions that people are demanding, because those political positions are in direct opposition to the majority of the players within the party that claims to represent progressives/left. It doesn't. It's a Conservative Party that has progressive talking points.
That is not how you run anything. That's not how you run politics, that's not even how you live a life. Don't let fear of failure mean complete inaction.
Taking risks is absolutely paramount, otherwise those at the margins willing to take risks, will eventually win out.
It’s worth pointing out the irony of this position, which is that liberals decried Chevron at the time it was decided because it required deferring to a narrow interpretation of the Clean Air Act by the Reagan EPA. Progressive organizations are always suing the EPA, because regulatory agencies are inherently centrist and resist change in either direction.
What this decision means is that Sierra Club, NRDC, etc., can now litigate in the Ninth Circuit and push for more favorable interpretations of environmental laws. And the next Republican administration can’t take that away, the way they could under Chevron, which allowed agencies to change their interpretation of the same law for no reason.
> What does that even mean? Supposedly these agencies already know what they're tasked with, no? If not... well I mean that's straight up irresponsible.
It's unrealistic to expect agencies to implement flawless regulations, especially when they're often underfunded. Complex situations will always have loopholes, but letting corporations exploit them freely doesn't benefit society.
Sure, agency overreach can be a problem, but in this case, I think the lack of regulation is more concerning.
> The problem with a lot of the called "progressives" is that they've adhered to a different kind of conservatism, where while the ideals are progressive, every single instance of actually implementing those ideals are conservative and play to old power structure.
I agree with your point about the conservative/progressive labels. People's views are nuanced - they might want to maintain the status quo on some issues, push for progressive change on others, or even revert to past practices. It's not black and white, even though we feel that way cause our society is getting more polarized.
I don’t think OP said that agencies have to make flawless regulations. They said that congress can literally make the Chevron Doctrine law. Giving agencies the power that they had before this ruling
Generally speaking they are considered "unelectable" and thus mostly exert influence indirectly if at all. Especially in the United States, even many "progressive" causes that have become relatively mainstream (in terms of popular support) are viewed by most people as having very little actual political representation due to the two-party system, and this has been well-understood by most people who call themselves progressives for several decades.
> Supposedly these agencies already know what they're tasked with, no?
I don't even see why such a law would have to name any agency. It could be a generic, "yes Supreme Court we do intend to let the executive fill in the blank in the law through regulations - that's why we call them regulations".
Even if that failed (perhaps on constitutional grounds), they could periodically accept agency regulation revisions and pass them into law.
Overruling Chevron doesn't require Congress to make laws covering every nuance. It just changes who resolves ambiguities in the laws. The irony of your comment is that federal clean-water legislation dates to 1948. The governing precedent at the time was Skidmore v. Swift, under which courts deferred to agency interpretations of statutes tot he extent the court found them persuasive. That regime functioned just fine for 40 years before Chevron changed the law.
Chevron, of course, was a case where the Reagan EPA interpreted the word "source" in the Clean Air Act to refer to an entire plant, rather than a distinct pollution source. The D.C. Circuit, in a decision written by Ruth Bader Ginsberg, disagreed with the EPA's interpretation of the law. The Supreme Court reversed, holding that the EPA was empowered to resolve such ambiguities in the text of the statutes.
Why stop at drinking water? If it's not codified in legislation, it will now be fair game for corporate America to exploit.
Up until now, companies had to cannibalize their customers when they could no longer find legal ways to grow. This will be enshittification like we've never seen. Instead of cannibalizing their customers, corporations will be able to cannibalize and exploit everything else that isn't explicitly nailed down in legislation.
In essence, this is likely the next Citizens United: another massive power grab for corporate America, the richest, at the expense of the people who populate the country.
> When you can’t find clean drinking water in 30 years, this will be why.
If you can find clean water in 30 years, it may be because reasonable judges were not required to defer to the environmental science of the Trump EPA. Chevron was imposed in the first place to help the Reagan EPA narrow environmental regulations.
In any case the vast majority of judges will probably keep deferring to the regulators in most cases. They aren't forbidden to, they're just no longer required to.
The court decided this on statutory grounds because that's what this court likes to do: base decisions on the narrowest grounds possible. But it mentioned Marbury quite prominently and it's pretty clear that the court will not sustain a law that codifies Chevron.
I suppose Congress could use its power under Article III’s Exceptions Clause to strip the federal courts (including the Supreme Court) of jurisdiction to hear cases challenging an agency’s adherence to its enabling statute. Courts would still always be able to hear constitutional challenges, of course.
And wouldn't this court still take this kind of challenge on constitutional grounds? That congress has no power to give legislative authority to an executive agency?
I assume so, as they should, since the constitution forbids it. This was the whole point of the separation of powers.
If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.
You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the court these powers in the first place.
What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.
The problem with interpreting the Constitution is that a lot of things are left unsaid or undefined. There is a wealth of writing outside the Constitution that helps clarify what was intended when the text of the Constitution is ambiguous, such as the Federalist Papers.
Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants.
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Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.
Alito said "[the Constitution] means what people would have understood it to mean at the time it was written." One can certainly accuse Alito of cynically ascribing modern Republican party politics to the framers, but I don't see a "smoking gun" here.
To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter.
Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."
Under this court's approach the interpretations of the constitution from around the time of adoption of it count as strong evidence for its meaning today. So this approach would not work for you.
Any power not explicitly granted the Federal government in the Constitution devolves to individual states, so each state would have the power to decide constitutionality as a matter of state law.
If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court.
Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.
> You know, maybe it's time to overturn Marbury v. Madison
You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?”
Conservatives will 100% take you up on overturning Marbury.
Unless the world turns to 1s and 0's, execution of a law will always in part depend on interpretation of the law by the executor. To pretend otherwise is to mistake ideals for reality.
Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality.
Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.
If congress doesn't like how federal agencies implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.
The whole point of courts is to be the place of judgment as to whether a law is actually being violated or not.
Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“
The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.
And I suppose that soldiers who are in the middle of combat shouldn't be able to choose where to point their rifles without congressional approval? Do we need a bill for each new weapons system, since their procurement and use won't have been specifically called for in statute? Etc.
Congress already decides how much to spend and on what weapons systems for the various branches of the military.
Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.”
In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.
> Congress already decides how much to spend and on what weapons systems for the various branches of the military.
Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program.
> The authority to command the armed forces is directly under the executive
The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.
My argument is that we have been lax with the separation of powers. Congress is required to declare war before the President can direct the armed forces into combat, for example. This has failed recently. Congress also must not declare a permanent generic war, and then leave it up the the executive branch free to do whatever it wants with the military. Or, if they declare war on French Guiana, that doesn’t give the president freedom to attack Georgia.
The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.
You're completely right; my thought experiment was half-baked. A challenge to an agency's use of delegated power is necessarily a constitutional challenge. So, unless Marbury were overturned, this wouldn't fly.
You do realize the dems doing something and the reps following up with the same thing, doesn't somehow stop the republicans for just doing it themselves lol,
I'll never understand this bullshit stance "democrats cant do it because then maybe republicans will do it later" ... i mean how does not doing it ever stop republicans from doing it anyway later lol... this stance is what has fucked democrats for decades, this obliviousness that republicans have no issue jumping directly to extremes, like saying ROE was settled law and then overturning it in a fucking massive partisan ruling.
Overruling Roe wasn’t “extreme,” it was literally the lowest hanging fruit on the tree. At the time it was decided, a prominent law professor noted that it’s “not constitutional law and gives almost no sense of an obligation to try to be.” It was the left’s version of Lochner—a decision so irrational that by the end liberals could only defend it on the ground it was precedent.
On top of everything else, Roe was an aberration internationally. When Macron criticized the U.S. Supreme Court for overturning Roe, he got the French people to approve an amendment to add an abortion right to the French constitution. Of course, French courts wouldn’t just gin such a right into existence from thin air, because they’re not lawless. I don’t know if anyone picked up on the irony of that.
The real chumps are Republicans. They should appoint justices that will create the conservative version of the Warren Court. Adopt Democrats’ preferred “emanations from penumbras” standard for interpreting the constitution. I bet you can find some cool stuff in “emanations from penumbras” of the second amendment, the contract clause, etc.
It's so narrow that it's out of context. The APA does say "all matters of law" but it's in a longer sentence that makes it clear they mean a legal dispute. Roberts et al cram a huge shift of plenary powers through that pinhole. Regardless of what you think about the administrative state, no one can say with a straight face courts will do a good job of this. We don't even have enough judges to manage immigration and family law cases, and now we need people who are legal experts _and_ subject matter experts in all regulatory cases that come before them? I mean, we'll see what courts think after environmental rights groups file thousands of suits (as the majority seems to think they should be doing) after this.
Or I mean, a different outcome is that we get EPA court. Article III is very short and doesn't design the federal judiciary. Biden could pretty easily just make the EPA a court with lifetime appointments. What an own goal that would be haha.
sorry, can someone explain this to someone who gave up on the article at the first bullet point, nor had enough sleep (and so is too lazy to look up everything)
Long ago Congress passed laws delegating a lot of rulemaking authority to the executive branch, the idea being that Congresspersons and their staff aren't deep-knowledge experts in most fields, and a lot of detailed rulemaking is best left to non-partisan career government employees (which, however, are usually guided by partisan political appointees, unfortunately). This is potentially dicey where the constitution is concerned: one of the foundational principles of the US constitution is separation of powers, and giving the executive branch what is essentially legislative power is maybe not in line with that.
But Congress did it anyway, and the SCOTUS has over the years upheld it. There was a landmark court case involving Chevron (the oil company). SCOTUS ruled there saying that the executive branch agencies responsible for rulemaking are experts in their fields, and we should mostly defer to them when their position seems reasonable, and when Congress hasn't passed a law that contradicts what they want to do.
Marbury is a much older case, that made precedent the idea that courts have the ability to strike down laws that they believe violate the constitution.
The current conservative-leaning SCOTUS is skeptical of what conservatives call the "administrative state" (basically: rulemaking done by the executive branch). They seem to not be a big fan of "Chevron deference", and are fully willing to exercise their Marbury-affirmed power to strike down executive actions that they don't believe are constitutional, or don't believe directly stem from laws Congress has passed.
I think this misses an important distinction. The issue here isn't the extent to which Congress can delegate rule-making authority to executive agencies. Those bounds haven't been moved. The issue is how how much deference courts are to give agencies when deciding when an agency-made rule reasonably adheres to the purpose and function of a statute. In theory the degree of deference shouldn't matter--agencies' retain the same rule-making authority and flexibility as before--but as a matter of process it absolutely does.
SCOTUS invented the Chevron doctrine because it believed at the time courts were too quick to second-guess the logic behind agency rule making, and in doing so unnecessarily and improperly inserting themselves into technical debates as well as broader political debates. IOW, the court was primarily concerned with people using the courts to subvert executive prerogatives and electoral politics. The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.
Then and now, by moving the threshold for when courts can second-guess federal agencies, it's effectively altering the rights and responsibilities between Congress and the President, as well as between those two institutions and the electorate more broadly.
> The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.
That's very charitable. A less charitable view might be that their concern is that regulatory bodies and other executive agencies are standing in the way of personal and corporate profits, and that overturning Chevron means that the courts can now cripple the ability for federal agencies to function by overruling the reasonable interpretations of statute those agencies have been operating under all this time and instead limit them to only the most narrow interpretation of the law. Law that has, for decades now, been being written under the assumption that Chevron exists, and not with the expectation that an adversarial judge will try to undermine the intention of the laws being passed.
I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity. I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is, and next month or next election it could be something else entirely. In such cases I would absolutely want the courts to evaluate that ambiguity by treating both sides of the argument equally and weighing the law as it stands. So it seems like it should be the same when it comes to regulatory rule making as well. If the law is unclear, deferring to the enforcers of that law seems no different than deferring to the cops. The court system and the government as a whole is already institutionally biased towards the government, without any need for an explicit policy to prefer the government's side.
> I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity.
I doubt it. I think most people have some federal agency they aren't a huge fan of. Sure, the fact that Chevron helped to allow the EPA keep your air and water from being poisoned by greedy corporations who would do it in a second if it would make them more money helps to make it a more sympathetic cause, but it's not as if people aren't aware that the defense applied to every other agency too.
> I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is
That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.
It's not about deferring to the enforcers of that law. It's about deferring to the law first, and only imposing a narrower interpretation if the enforcers of that law were already out of line. It just means that agencies aren't limited to the most narrow interpretation of the law as written.
>That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.
There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.
Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties? I have no doubt they would say so, and absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable? Surely we should defer to them as they're the experts in their field right?
If the secret service started shutting down cell towers within a 10 mile radius of presidential rallies, well that's just common sense protection against remote explosives and well within their directive to protect the president right? They are the experts on this after all and have wide latitude to do what's necessary. No need for the courts to review that action or the laws surrounding it.
> Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties?....Surely we should defer to them as they're the experts in their field right?
It's a fantasy to think that this will mean state spying powers will be reduced.
> absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable?
The courts are! They always have been, even under Chevron. If at any point a judge thought that the FBI, ATF, DEA, NSA, or <insert three letter agency here> interpreted the law unreasonably, or extended their authority beyond what was allowed that judge had the power under Chevron to impose the court's own interpretation of the law on that agency.
The Chevron defense said that if the court agreed that an agency had an interpretation of an ambiguous law which was reasonable and permissible the court couldn't impose a more narrow standard on them. Because it's been overturned it now doesn't matter if the court thinks that what the agency was doing was reasonable and permissible, the court can inject it's own interpretation anyway.
Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it. That's it. Now that protection is gone and I promise that it's not going to make you more free or better off. It means that any and all of the rights and protections you have today thanks to federal agencies are at risk of going away as soon as a case goes in front of an activist judge
>It's a fantasy to think that this will mean state spying powers will be reduced.
Never said that it would, I said allowing enforcers to set the extent of their own powers is a bad idea.
>Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it.
Federal agencies (indeed any government agency) should always be subject to narrow interpretations of the law when the extent of their authority and powers are in question. If that interpretation is too narrow for Congress, then Congress needs to be more explicit about their intent. The law needs to be as clear as possible. Ambiguity is a flaw not a feature and the fact that ambiguities can lead to problems means we should make better law, not throw our hands in the air and let whoever's in charge this week decide what the policy is. If we want a massive federal agency to oversee something then the extent to which that agency is empowered and what that agency is empowered to do had better be explicitly spelled out.
To support what Autoexc is saying - this is effectively an argument about the theory on one side, and the practical reality of intentionally skewed judiciaries, a grid locked and obtuse congress - which in turn is driven by groups with a common cause.
The law, in most cases, is about the practical application of an ideal (the law) to reality (the case).
If things weren’t so lopsided and blatantly partisan, then yes, the theory would matter. It would probably be a prosaic and boring decision.
This court is not only engineered to lean heavily in one direction, it is also being fed cases based on that common agenda.
In addition - we cannot avoid ambiguities unless we have powers of foresight that make the entire governing edifice irrelevant.
No one could predict the capabilities or failures of this generation of LLMs for example. There is no better “law”, unless it is an act that gets updated on a near monthly or quarterly basis.
This is a timeline that a congress is not suited to manage. This is definitely something that an agency of some sort would.
Finally - Saying that bureaucrats and experts are biased, but to leave out the bias of the courts feels unfair.
> There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.
What’s more, these agencies—particularly the ATF—love to make up, out of whole cloth, completely new rules that are contrary to their own previously-expressed rules that have the effect of retroactively turning millions of law-abiding people into felons overnight.
I don't think people will appreciate it when they have to buy bottled water because all the aquifers and lakes are full of heavy metals from manufacturing upstream. It really is part of Project 2025 and has been in the works for a while now. If they don't like the bureaucracy, Congress has full powers to remove it there was no reason to gut all regulation so they can be tied up indefinitely in court and our courts are overwhelmed by challenges so that every decision takes 15 years to work its way through court.
> I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity.
In the original context of the 1984 Chevron case, environmentalists were arguing that the EPA had redefined "source" in an overly narrow way, much narrower than Congress had originally intended in passing the Clean Air Act, thereby enabling companies to emit more air pollution. The Chevron decision was seen at the time as a loss for environmentalists and win for the corporate sector and conservatives.
It's funny how the tables have turned – a decision which was originally praised by conservatives and condemned by liberals and environmentalists, eventually ends being condemned and overturned by conservatives, while being defended by liberals and environmentalists. Both the 1984 case and the 2024 case had a conservative majority, and were perceived at the time as furthering conservative political objectives.
I think what's really happened: in 1984, the federal judiciary was widely perceived as liberal-dominated, while the federal bureaucracy was seen as relatively more conservative, so liberals wanted the judiciary to be more powerful than the bureaucracy, conservatives wanted the opposite. In 2024, the situation is reversed: now the federal judiciary is perceived as being increasingly dominated by conservatives, while the federal bureaucracy is viewed as being more liberal, so now liberals want to defend the bureaucracy's power against judicial encroachment.
It looks to me like the only thing that's constant here – on both sides – is "the ends justify the means".
That’s a good example, but it goes even deeper than that. Chevron itself was a case that reversed a judgment in favor of an environmental organization written by Ruth Bader Ginsberg (when she was a D.C. Circuit judge), and siding with the Reagan EPA.
I'd just love to see them keep this same energy when dealing with the actual police and end qualified immunity. They won't. But it would be the right thing to do.
That's very charitable. A less charitable view might be that corrupt, know-nothing political friends use their ability to "interpret a gap" to make sweeping legislation with no accountability and in-house courts to adjudicate on their behalf, then use selective enforcement for de facto bribery in a revolving door of public-private scheme to extort the productive sector of our country, and give to the useless rent seeking politicians and their cronies.
Wouldn’t a system where you need bribe a large number of bureaucrats (who might have differing opinions and priorities) still be more robust than one where you just need to bribe a couple of corrupt Supreme Court justices like now?
> the useless rent seeking politicians and their cronies.
Courts are largely politically appointed. Why are judges necessarily more trustworthy in your opinion?
I was just bootlicking the Fox news narrative as hard as you are bootlicking the NYT. It was parody.
My real opinion is that no one is more trustworthy than the other. They're all people. But there are constitutionally delegated duties given to each branch that we've gradually eased over the past century, and between Jarkesy disallowing in-house courts for certain types of crime, the resurgence of the non-delegation doctrine and now the overruling of Chevron, SCOTUS thinks this delegation is not optional. I personally agree with them hesitantly, but predicting the future is hard, and there are some actions they take where I think the consequences are obvious, but this is not one of them, and I would have slept no more or less soundly if this case had come out the other way.
If the court had a 50-50 split, then yes, your argument would carry merit. We can all disagree with court rulings, especially if we have experience in a domain.
Our opinions can be right or wrong. However I think everyone can agree that a skewed court will never be trusted when its majority votes along party lines.
What is a “skewed court?” We had a Democrat-majority court for decades after FDR won a series of key elections. We now have a Republican majority court because of Reagan, Bush, and Trump. Biden’s recent implosion will likely cement the 6-3 majority for some time.
Democrat-appointees made huge changes to the constitution when we had a “skewed” court going the other way. I think those decisions were terribly wrong as a legal matter, but what’s dangerous is the effort to make it seem like they were illegitimate through the rhetoric that’s being spewed these days.
This is an old comment, but I thought it was worth addressing since it brings up the point of rhetoric.
The current crop of judges is absurdly partisan. This is no ordinary position, these judges are not regular Joes. Their opinions, their intellect, their fairness and open mindedness to address a case on its merits, is what their entire life time appointment is about. Being a Judge.
Read Alito's dissenting opinion on Murthy. He depicts (not interpret) the whole case as government censorship.
Mind you, this is the case where the government would have had to invent time travel to be culpable.
> Plus, Facebook started targeting her content before almost all of its communications with the White House and the CDC,
page 3- https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf
It seems that congress is much quicker and more willing to correct overreach by the executive branch through legislation compared to overreach by the judiciary — especially at the Supreme Court level.
It's worth noting is that at the time the EPA's position was _in favor_ of Chevron, while the agencies right now tend to be a lot less corporation-friendly (hence the need to overturn the precedent, some say).
Also worth noting is that the head of the EPA at the time was Anne Gorsuch, mother of Justice Neil Gorsuch.
This is completely wrong. Chevron is about the Clean Air Act, which required Chevron (the oil company) to get a permit for every pollution “source.” The Reagan EPA interpreted the word “source” in the statute to mean an entire plant, not an individual pollution source (like a smokestack). It was sued by the Natural Resources Defense Council, who argued that the law requires Chevron to get a permit for every pollution source.
The D.C. Circuit, in an opinion by Ruth Bader Ginsberg, sided with NRDC. But the Supreme Court reversed, ruling in favor of the EPA (and Chevron). The Supreme Court said that the court had to defer to the EPAs interpretation of the word “source,” even if the court thought that wasn’t the best interpretation of the law.
> Long ago Congress passed laws delegating a lot of rulemaking authority to the executive branch […]
By "long ago" the delegation was first mentioned (AFAICT) in 1825:
> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.
Isn't the only reason the Supreme Court would not sustain a law is because it is unconstitutional? And otherwise their only role is to interpret laws? At least that's the way it is supposed to be AFAIK.
No, the court can also say that two laws are inconsistent. In this case, there is a judicial ruling (Chevron) that has stood for a while, that they are saying is inconsistent with a law (the APA). The constitution is not in this ruling at all. Generally, laws override judicial rulings unless the constitution is in question.
But that’s not really how it works, is it? The court is more interested in pushing an agenda than playing its role in balancing the other branches of government. It’s obvious in the way they defer to precedent when it suits them and throw it aside when it does not.
They didn't just mention it. The explained that it means that they (the courts) interpret the law. That they decided Raimondo on statutory grounds (specifically the Administrative Procedures Act) doesn't mean that they wouldn't have decided it on constitutional grounds if statutory grounds weren't available. Basically they've left the door open for Congress to fine-tune things a bit, but if they try to enshrine Chevron in law then it's pretty clear that the majority on the court already doesn't think much of it.
The court will be very zealous of its power (from 1803, in Marbury v. Madison) to decide that laws are unconstitutional, so yes, if the court things a statutory codification of Chevron is unconstitutional, they will so rule.
However it's also very unlikely that Congress will pass Chevron into law, and the text they might write might be narrow enough to pass constitutional muster, so until then this is a purely academic question.
Congress can define the court's jurisdiction, but that's a very broad tool. By and large Congress doesn't do that. I suspect that it would be more practical to pack the court.
Why is the potentially decades-long process of packing the court easier than inserting a section in a bill that says “btw, judges can’t review this specific law because it’s specifically written to revoke your recent power grab.”
I don’t recall the collapse of the republic or the constitutional system, just decades of growing prosperity and rising standards of living culminating in the 1950s, the era everyone is desperate to return to.
For economic reasons unrelated to what was going on in the legal system. But the mid-20th century also saw a gutting of the constitutional system the founders had created, and replacement thereof with an unelected administrative state.
You might want to read the room. Not just in the US, but across Europe as well, people are angry about their democracy having been stripped from them, and rule by unelected, unaccountable experts.
Anti-intellectualism is nothing new, we’ve always dealt with spasms of it and the current one will pass. When you say unelected experts what you’re referring to are non-crony public servants who aren’t subject to the spoils system of party politics. No modern democracy could function without them. Extremists hate them because they offer a competent buffer against the chaos they hope to unleash.
It's not about "anti-intellectualism." I think cognitive elites, of which expert bureaucrats are a part, are critical to running society. But they have a moral obligation to stay in their lane. Elites must use their capabilities to do what the public wants them to do. Both in the U.S. and Europe, they have not been doing that, but instead have been abusing their authority to impose their own ideologies.
Consider the 2016 "Resistance" by federal employees to the election of Donald Trump. The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss. Instead, they publicly and vocally declared their insubordination, both to the President and the public who elected him. Likewise, during the 2020 George Floyd riots, you saw public health experts allow their moral ideology to affect their expert recommendations--treating religious gatherings as somehow being different from social justice gatherings.
My belief is that these things directly led to the debacle of the pandemic, when people refused to trust experts on vaccination--despite Trump telling them to take the vaccine. My dad spent his life working as a public health expert in the third world, and what happened was, while disappointing, not a surprise to him. A huge part of public health work is getting people to trust you. And you must earn that trust by putting the job first. If you go into a village in Bangladesh and people don't want to be treated by a woman doctor, you provide them a male doctor. You don't chastise them for their "sexism." My dad actually worked for a Planned Parenthood affiliate in Bangladesh. At least back in the 1980s, they were providing family planning services consistent with local beliefs, and not trying to impose western ideals on the public--something that would have swiftly destroyed trust.
Most people who aren't that smart understand that and are deferential to their betters. But they also have an intuitive and accurate sense of what's an exercise of expertise, and what's a moral or political judgment. And when experts step out of their lane, they destroy the trust that's critical to doing their jobs.
> Elites must use their capabilities to do what the public wants them to do.
It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job. Public servants get their orders from their managers who are appointed by public officials. That’s their “lane.”
People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.
> It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job.
"Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government. They don't get to use their position to push back on the government because they think they should be driving somewhere else. And they should be fired if they do so.
> People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.
That is exactly what it should mean. If the people elect someone who promises radical change, a functioning democracy should be responsive to that! Resisting the policy agenda of the elected government is not a legitimate function of the bureaucracy. And it's absolutely a "bug," not a "feature." I can't think of any constitutional system that envisions the bureaucracy serving as a check on the policy choices of the elected branches of government. Certainly, there is no such concept in the U.S. Constitution, which lays out a comprehensive system of checks-and-balances.
What you're saying is exactly the anti-democratic power grab I'm talking about. It's experts thinking that their education somehow validates their policy preferences, and that the point of elections is simply to provide some sort of signal to the permanent bureaucracy to evaluate according to their independent judgment and discretion.
I can’t remember at the moment precisely which old British Lord said this in the context of Indian independence but the quote goes something along the lines of democracy is only going to last if the program voted in isn’t a complete revolution, there has to be some continuity reflecting the demos, and expecting a complete overturning and revolution by votes is going to destroy the system.
Of course Government of India Act was not a great system at any rate and you’re probably not a fan of the UK one either.
I mean the belief that it was best for educated British people to run India and impose their superior morals on India is a pretty good analogy for how the Ivy League educated bureaucratic class views the rest of America.
Indeed, I think it’s no coincidence that all those Brahmin elites that did well for themselves under colonial rule come over here and become natural Democrats.
> "Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government.
Ye… You have never seen an incompetent manager that will draw a route of a bus through a brick wall, and yell over the phone ‘why haven’t you driven through it?’
More broadly, do you hate the idea of employees having opinions and their own initiative? Is your boss tells you to set the company building on fire, will you do it? If you are told to drive over a child, will you do it?
I feel like you are being an ideologue and you like how things work in your head, without realising that if everyone did exactly what their boss tells them, society would collapse within a week
> More broadly, do you hate the idea of employees having opinions and their own initiative?
I hate the idea of people working for the federal government resisting the policies it’s their job to implement, because they have policy disagreements with the duly-elected leaders.
There are ample policies and procedures for dealing with insubordination. Was there something in particular with the “resistance” you can point out? I never heard of any it amounting to anything other than some occasional clickbait.
> The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss.
You mean a new boss put in place by an Electoral college, which didn't represent the majority of the people?
Majority of the country didn't vote for the 2016 President
You mean the guy who won the only contest that anyone was trying to win? You can complain that San Francisco would have won the Super Bowl if field goals were only two points but we have no idea who would have won under different rules.
Trump won the vote that determines who represents the people in the federal government. There is no separate election where the candidates campaign to win the most absolute number of votes. You can add up the state-by-state vote totals, but that’s a meaningless number because nobody is trying to win that.
Fun fact: if you want to talk about different ways in which we don’t select the executive, it’s interesting you overlook the most common one in advanced democracies: the number of party votes or seats in the legislature. Trump would have won that too, both in seats and by 2 million total votes.
The general issue with your comment is _just_ the president was donald trump.
He's not the governor of a single state so when those states issues stay at home orders conflicting with his direction that's just federalism in action. And then you need an act of congress to override the states like with slavery.
Marbury itself has no basis in the constitution. Congress can gut the powers the courts have carved out any time, what I’m suggesting is that it can be done with a surgical strike rather than going nuclear.
Ironically Marbury was about Congress gutting the courts. Jefferson's Congress canceled 18 federal courts, leaving 18 judges (appointed by Adams at the end of his term, and who had not yet been seated) with no court to sit in! The case was a suit to force Jefferson's Secretary of State (Madison!) to give those new judges their commission. Marbury is a fairly complex case.
Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.
This court has gone a long way to say that vibes aren’t a sufficient level of clarity anymore, so it’s only fair that this can work against the court’s allocation of power as much as it has worked for it.
They don't believe it's unconstitutional. They believe it conflicts with the Administrative Procedure Act from 1946. Something that they apparently believe the unanimous decision in Chevron from 1984 got wrong.
I know little about US law, but I thought one of the priciples of common law is that once a precedent is set then it is set forever unless changed by statute? Allowing a court to change precedents undermines the whole concept of common law doesn't it?
This is stare (“starry”) decisis, and while it is absolute vertically, it is less so horizontally. Basically the court can decide that it got it wrong before, but the 9th Circuit is bound by a higher court’s precedents (SCOTUS in this case): https://www.law.cornell.edu/wex/stare_decisis
With the caveat that the appeals courts set lots of precedents where the cases never reach the Supreme Court, in which cases the appeals courts are as bound by their precedents as the SCOTUS is by its precedents (i.e., not really).
Technically, SCOTUS, as the highest court, isn't beholden to anyone's precedent. This year's SCOTUS is just as legitimate as last year's, so they always have the power to overturn past decisions. Lower courts have to follow what higher courts decide, but SCOTUS has no higher authority. And sometimes, like in Brown vs. Board of Ed (which ended legal segregation), it's a very good thing for the Court to overturn its past decisions.
But in practice, to non-lunatics, stare decisis (the legal principle that says not to overturn, or even consider, topics that have already been decided in the past without an extremely good reason) is an incredibly important prior to bring into any discussion. If the court actually uses its power to completely rewrite the rules of how government works on a whim - and let's be clear, that's what this decision does - then there's no way for anyone to ever make a plan. Nothing is stable.
Unfortunately, at least 5/9 of the current Supreme Court are either lunatics or blatantly corrupt. Chevron was decided unanimously for a reason. There is no way to administer a modern state without that concept - which is why right-wing extremists are so happy to see it gone, because they don't want the state administered.
i don't remember my government class exactly but i think the purpose of the us supreme court is to determine if a law is constitutional or not. I'm not sure if it can explicitly strike down a law but declaring it unconstitutional would be effectively the same.
>i think the purpose of the us supreme court is to determine if a law is constitutional or not.
Interestingly, the ability to declare a law un/constitutional is not an enumerated power given to the court by the Constitution. The Supreme Court declared that power for itself in Marbury v. Madison and people have just went with it ever since.
It’s not really a separate power. Courts express their understanding of the law. Some laws are statutes, some are the constitution itself. If there are conflicts then the court will express its opinion on which is authoritative. What the Executive and Legislative branches choose to do after the fact are things those branches may do.
It becomes a somewhat circular argument. Through their ruling of Marbury v. Madison, the court declared the Constitution as law. Article 3 of the Constitution gives the court judicial power to interpret law. Therefore, by their own ruling they gave themselves the power to decide what is (or isn’t) constitutional.
Which seems like an enormous power grab on the one hand but I can’t really see any other way for them to be a check on the other branches without that power. There needs to be some legal basis to declare a law invalid. The Constitution (with all of its vagueness at times) seems like the better way than simply vibes.
The Supremacy Clause lists the supreme laws in order: constitution, federal statutes, treaties. If there is a conflict among them then it's natural for the courts to resolve that conflict by deferring to the more supreme item on that list, thus if a law violates -say- the right to due process as enshrined in the constitution then that law must be invalid and the courts must rule as much.
Marbury is an utterly natural consequence of the Supremacy Clause and Article III (and the context of common law).
> Through their ruling of Marbury v. Madison, the court declared the Constitution as law.
The constitution declares itself as supreme law. See the Supremacy Clause:
This Constitution, and the Laws of
the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be
made, under the Authority of the
United States, shall be the supreme
Law of the Land; and the Judges in
every State shall be bound thereby,
any thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.
The order in which the supreme laws are given is: constitution, statutes, treaties.
> The court decided this on statutory grounds because that's what this court likes to do: base decisions on the narrowest grounds possible. But it mentioned Marbury quite prominently and it's pretty clear that the court will not sustain a law that codifies Chevron.
I'm not convinced you are right. If you look at the conservatives on the current SCOTUS, they aren't monolithic. Thomas and Alito are hard conservatives (with Thomas the hardest), [0] and I'd expect they'd likely do as you suggest and strike down any statutory attempt to reintroduce Chevron as unconstitutional.
But I'm not sure Roberts would be willing to go along with that. As the most moderate of the conservative justices, he was comfortable striking down Chevron on statutory interpretation grounds, repeating that on constitutional grounds might be going too far for him. And he only has to convince one other conservative to go along with him, and with the support of the liberals he'd have a majority. Kavanaugh is only modestly more conservative than Roberts, so he'd be the most likely candidate. I think, if Roberts was to overturn on constitutional grounds a statutory attempt to reinstate Chevron, he'd prefer to do it in the narrowest way he could – striking down that particular attempt, but leaving open the possibility that Congress could have another go at it.
The other thing you have to keep in mind, is ultimately the justices are individuals with their own idiosyncrasies, and they don't always vote the way you'd predict if ideological leanings were the only factor driving their decisions. A good example of that was the Fischer v United States case [1] from the other day, in which SCOTUS sided with January 6 defendants: Jackson joined the conservatives in that, whereas Barrett joined the liberals in dissenting.
I suppose Jackson siding with the conservatives was not entirely surprising; as the most moderate of the liberal justices, she is the most likely to join the conservatives in any case. Barrett's dissent was somewhat more surprising, given she's not the most moderate conservative, with Roberts and Kavanaugh siding with the liberals more often than she does.
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
Congress can't actually legislate anything while it's held hostage by obstructionists and there's effectively zero chance that a bunch of republicans who want to dismantle the already inadequate regulations that keep entire communities from being poisoned will vote to remove their power to do exactly that through the supreme court.
I don't think there are many Americans who prefer a deadlocked and dysfunctional congress that is incapable of doing their jobs. We have a lot of things that need doing in this country which can't get done when obstructionists stand in the way.
There will always be some number of petty people who don't care what the costs are as long as "their team" isn't allowing the "other team" a win, and those who don't want the federal government doing anything other than war, but when our government shuts down most American's aren't very happy about it. Most have a list of things they'd like their representatives in Washington to be doing for them, and they don't view the obstructionists acting like toddlers preventing those things from happening very favorably.
In the end, a partisan pissing match doesn't actually help the American people and our government should be working for us, not sitting on their hands doing nothing while the American people suffer and backslide. As long as election results are entirely divorced from approval ratings congress has zero incentive to work for the people though and they can get away with preventing the government from being functional/useful for anyone but themselves and the people stuffing their pockets.
> I don't there are many Americans who prefer a deadlocked and dysfunctional congress that is incapable of doing their jobs. We have a lot of things that need doing in this country which can't get done when obstructionists stand in the way.
I know a lot of them. And it's how the system was designed, by the way. Congress was supposed to generally be weak and deadlocked unless an overwhelming majority of people wanted something.
Congress was supposed to be composed of a bunch of people representing their constituents, not partisan hacks serving the interests of political parties.
I have spoken to my congressman and both of my senators before. It turns out you probably can, too, if you have something worthwhile to say. Political parties have existed forever.
The overwhelming majority of people do want a lot of things. Gerrymandering in the House and the fact that the Senate gives Wyoming and Vermont the same power as California and Texas prevents that.
>> Congress was supposed to generally be weak and deadlocked unless an overwhelming majority of people wanted something.
> The overwhelming majority of people do want a lot of things.
While the language is close these aren’t the same. Specifically the parent is saying that people need to want the same thing. Claiming that people want lots of things with no consideration of what they are or even how the things are done falls far short of the goal.
> the fact that the Senate gives Wyoming and Vermont the same power as California and Texas prevents that.
Have you considered that our founding documents/government was structured this way on purpose? It was a major incentive for encouraging small states such as Wyoming to join the union. Without this mechanism for giving smaller states an equal influence relative to other states many would not have joined the union.
> Have you considered that our founding documents/government was structured this way on purpose?
The senate was modeled on the house of lords and the expectation was that the country would be mostly ruled by the representatives in the lower house, with the senate handling special things like impeachment.
The senate disproportionately representing smaller states was a compromise necessary to get smaller states to ratify the constitution. Wyoming and Texas didn't exist. Senate rules that turn it into the place were legislation goes to die (like the filibuster) are rules created by the senate to give itself more power.
The Senate was always supposed to be part of passing laws. I'm not sure where you got the idea that the Senate would only handle special things. That's what the House of Lords does, but the roles are not supposed to be the same.
We might do well to consolidate some of the smaller and sparse states from time to time. Otherwise they may sell their souls for any kind of edge over the more populous ones.
If people in California and Texas want certain things then they still have a great deal of freedom to enact those laws at the state level. The federal government has only preempted state legislation in limited areas. For example, if Texas wanted to implement a single payer healthcare system within their state then they could just do it (at least for residents not covered by federal health plans). There's no need for federal laws covering every issue.
> Congress was supposed to generally be weak and deadlocked unless an overwhelming majority of people wanted something.
It was not. Rules that make congress "weak and deadlocked" are mostly not in the constitution. For instance, the filibuster is part of Senate rules and could be changed at any time.
Party-line votes and deadlock in the house are mostly driven by partisan politics and party discipline.
The constitution specifies a few things that require a super-majority (impeachment conviction, overturning a president's veto, and constitutional amendments). Everything else is supposed to be a majority vote of 535 independent representatives.
> I want X, you want not X. We both want Congress to "do its job", but what, exactly is that job?
To govern. That means compromise. Maybe we disagree on X and our representatives decide to do Y instead which doesn't full satisfy either of us. Maybe they pass X which I want while you don't, and in return they pass Z which you want while I don't.
It's not as if the idea of a congress that can work together is an impossible dream. The situation today is the exception and not the rule. For all the problems congress has had we're seeing historic levels of dysfunction and that shows in the total lack of productivity https://abcnews.go.com/Politics/118th-congress-track-become-...
The European Parliament was able to pass GDPR. Keep in mind the member states were blood enemies for centuries. If they can put aside their centuries long blood feuds to get sh*t done, Congress has no excuse.
> California has spent over $100bn to build 1600 ft of high speed rail over a decade. And it wasn't Republican obstructionists who caused that.
I'm not familiar with that specific situation. Was it taken to the federal courts and only allowed to happen because of Chevron?
> There are too many regulations.
I think many people cheering this ruling are just anti-regulation and they care a lot about that without thinking much about how this ruling will negatively impact their lives and the lives of their families.
I agree with you though. There really are too may regulations. That will probably always be true. As long as industry and corporations can write self-serving legislation and bribe people in congress to pass it, there will be regulations on the books that shouldn't be there. That said, regulation is the only reason you have safe electricity, clean air, and safe water (assuming you aren't one of the several millions of American's who currently don't have safe drinking water).
Regulations, like all laws, are just tools and they can be used to help improve our lives, preserve our health, promote the safety of the American people, and increase our freedoms or they can be used to stifle competition, funnel tax money into the pockets of private corporations, or restrict our freedoms. Like laws themselves (which there are also too many of) it would be foolish to abolish all of them because some of them are bad.
We should be paying attention to who is writing and passing regulations and who those regulations serve, then hold people accountable when they don't represent our interests. That's hard to do in our current system where people's votes don't mean much, so we might want to try fixing that situation first but being "anti-regulation" makes about as much sense as being "anti-laws". Laws are a good thing. Regulations are a good thing. Let's just try to make sure they are both serving the public good.
> We have a lot of things that need doing in this country which can't get done when obstructionists stand in the way.
I think calling people who oppose your policy ideas “obstructionists” is a neat ad hominem, as if the only reasonable position is yours.
What you’re lamenting is that you can’t force an agenda without people agreeing — and when they refuse to agree with you, your agenda can’t happen. While you say “most Americans”, factually, you lack a majority for your agenda: you’re a minority trying to impose itself.
> I think calling people who oppose your policy ideas “obstructionists” is a neat ad hominem
It would be, except that I never actually said that. Plenty of people can disagree with me and not be an obstructionist. A person in congress can even vote against something I'm in favor of and not be an obstructionist. Obstructionists are something very different from just being "people I don't like"
> What you’re lamenting is that you can’t force an agenda without people agreeing
No, it's certainly not about "forcing an agenda" it's about functional governance which by necessity involves compromise and a willingness to give and take. It's not even always about "agreeing". An obstructionist will vote against their own policy ideas to prevent letting their opponent get their way.
> While you say “most Americans”,
I mean most Americans. Polls consistently show that the majority of Americans want congress to work and they don't like the government shutdowns obstructionists cause.
> but factually, you lack a majority for your agenda
That's incorrect too. While obstructionists can stand in the way of policies that divide the American public there are also situations where a policy has majority support but is still held up or prevented by obstructionists. If we lived in a country where the approval rating of senators indicated their likelihood of getting elected you might have a point, as obstructionists being elected and re-elected would indicate that the majority of the people support them and their tactics. That's not the country we live in however. For just one example, notable obstructionist Mitch McConnell is the least popular senator in the entire country. He has no reason to stop being an obstructionist though, because how the people feel about him doesn't impact his ability to keep his job.
That's not democracy, it's just what happens after many decades of efforts to weaken democracy and erode the ability of the American people to have a meaningful influence on policy and who gets into office.
> Polls consistently show that the majority of Americans want congress to work and they don't like the government shutdowns obstructionists cause.
Those same polls show they believe their own representative is doing an adequate job - which is my point:
There’s no “obstruction” there, just frustration that your faction doesn’t have the votes to achieve your desired policy because some groups don’t agree with you.
> there are also situations where a policy has majority support but is still held up or prevented by obstructionists
Policies overwhelmingly favored by the majority of Americans are generally blocked by establishment candidates — at a rate far higher than “obstructionists”.
> He has no reason to stop being an obstructionist though, because how the people feel about him doesn't impact his ability to keep his job.
People he doesn’t represent can’t impact this job — correct.
And again, we’re seeing that you’re just upset by democracy itself: that you can’t force representatives on people and accordingly, can’t achieve what you want without their support.
Your entire post was nothing but deranged bashing of political rivals when you can’t achieve you policy objectives due to their opposition.
Nope. One example from Mitch McConnell's own mouth, talking about the the Republican Congress created the debt ceiling crisis -
"I think some of our members may have thought the default issue was a hostage you might take a chance at shooting. Most of us didn’t think that. What we did learn is this - it’s a hostage that’s worth ransoming. And it focuses the Congress on something that must be done."
There is a difference between trying to reach a compromise across a different set of ideals, and one party explicitly holding Congress hostage over a routine annual procedure. The first is healthy, functioning government that gets things done. The second is obstructionism that stops things from getting done.
Again, from Mitch McConnell - "If I'm still the majority leader of the Senate after next year, none of those things are going to pass the Senate. They won't even be voted on. So think of me as the Grim Reaper: the guy who is going to make sure that socialism doesn't land on the president's desk."
He's the same guy who refused to even start the confirmation process of Obama's supreme court justice pick a year from the end of his term. The GOP rejects compromise as a strategy, and does not even pretend to secure coalitions.
This. When the electorate is sufficiently divided or otherwise in the process of debate that there is no consensus, it is proper that the legislative bodies representing the electorate also likewise have no consensus with which to pass new legislation.
Also, this feature also works the other way: If Congress were to pass, say, abortion guarantees or Chevron Deference into law, then good luck trying to get them repealed. See also Obamacare, which hasn't been repealed after it was passed despite hell being raised.
Hard disagree. First, I'd say our system is more the exception that the rule. For example, most parliamentary systems don't take the "gridlock" approach, i.e. where you say "it is proper that the legislative bodies representing the electorate also likewise have no consensus with which to pass new legislation."
Instead, they basically give the side that controls parliament the ability to pass legislation, and if they fuck it up, they can get thrown out and another party has their turn - this is essentially exactly what is happening in the UK with the Conservatives getting kicked out of power.
The problem with this "eternal gridlock" is that, since Congress can't pass anything, basically the executive branch and the Supreme Court take over legislative roles, which I'd argue is worse. I.e. the executive branch makes a ton of executive orders, which if challenged get decided by the Supreme Court, basically leaving Congress out of it nearly entirely because that legislative body is so feckless.
By objective results, parliamentary systems haven't necessarily produced better outcomes. And there's no need for the federal government to assume so much authority anyway; the states can take care of most issues on their own.
> . See also Obamacare, which hasn't been repealed after it was passed despite hell being raised.
Let's see how long that lasts now. Overturning Chevron was a step to that very end. It puts the Department of Health & Human Services on the chopping block.
The overturning of chevron now allows the federal courts to prevent the HHS and CMS from doing their jobs which can prevent the Affordable Care Act from being carried out effectively. Once it's no longer functioning the republicans will have a much easier time overturning it without massive backlash from the American public who overwhelmingly support it (most importantly without pissing off the independent vote).
seems they are legislating less and less by the Congress.
The list of acts of the 115th United States Congress includes all Acts of Congress and ratified treaties by the 115th United States Congress, which began on January 3, 2017, and ended on January 3, 2019. The 115th Congress enacted 442 statutes and ratified 6 treaties.
The 116th United States Congress, which began on January 3, 2019, and ended on January 3, 2021, enacted 344 public laws and zero private laws
The 117th United States Congress, which began on January 3, 2021, and ended on January 3, 2023, enacted 362 public laws and 3 private laws.
The 118th United States Congress, which began on January 3, 2023, and will end on January 3, 2025, has enacted 65 public laws and zero private laws
Is volume of legislation the correct measure? That seems analogous to clueless managers trying to measure the productivity of software developers by lines of code written.
Did you miss the part where I said " while it's held hostage by obstructionists"?
When everyone is in agreement, congress is not being held hostage by obstructionists and some things can pass. When obstructionists are in disagreement, they can prevent anything from passing.
Gerrymandering is self-limiting. You can gerrymander to increase your party's number of House seats from your state, or you can gerrymander to make your seats more secure, but you can't do both! You can make some seats more secure while others weaker so as to strike a balance between these two goals, but you won't get as many seats as if you optimized for seat count and you won't get as many safe seats as if you optimized for seat safety.
If you optimize for seat count then a wave election can easily turn many of those seats over to the other party, and with them control of the House.
If you optimize for seat safety then a wave election need only turn over a few of your seats to switch control of the House.
We have had lots of wave elections in the past 100 years: 1920, 1932, 1994, 2006, 2008, 2010. Three of those are in the past 20 years. Four in the past 30 years.
Gerrymandering isn't all it's cracked up to be. It cannot make any party impervious to wave elections.
This, anyways, only as long as all House districts in each state have roughly the same population.
> Gerrymandering isn't all it's cracked up to be. It cannot make any party impervious to wave elections.
I think the last 15 years of elections would seem to contradict you.
My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
Wave elections are a thing, but as we've seen, they don't give a the waved party a massive margin.
> We have had lots of wave elections in the past 100 years: 1920, 1932, 1994, 2006, 2008, 2010
2010 is a bit of a magic number, because that was the point when Republicans started their concerted, coordinated, country-wide gerrymandering campaign. So I don't think elections prior to then can support or refute any points about gerrymandering.
> My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
The republicans would then find it necessary to change the constituencies to which they appeal. Anyhow, a few states are horribly gerrymandered by the democrats. The problem is that democrats did so horribly during the Obama years midterms that most states ended up in control of republicans for the 2010 and 2020 census.
> My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
You do know that, in the seven House elections since 2010, republicans won the congressional popular vote four times: https://ballotpedia.org/Proportion_of_each_party%27s_nationa.... They won 1-6 million more total votes. Republicans will almost certainly win the House popular vote this year too.
I’m deeply curious how you formed the belief that democrats would consistently win without gerrymandering. That’s obviously not true even if you look at polling, which obviously isn’t affected by gerrymandering. Democrats are 0.5 points ahead on the generic congressional polls, but republicans were 2.5 points ahead last fall. RCP clocked them 2.5 points ahead in 2022 (actual was 2.8).
> 2010 is a bit of a magic number, because that was the point when Republicans started their concerted, coordinated, country-wide gerrymandering campaign. So I don't think elections prior to then can support or refute any points about gerrymandering.
They already had done that, and they lost two big wave elections. (E.g., Texas redistricted in 2004.)
They really started gerrymandering hard in 2010 with REDMAP. There's really an extreme delineation in technology used to abuse the system at this point.
> My guess is that if gerrymandering were completely outlawed, Democrats would easily maintain control of the House, with a healthy margin, more or less permanently.
It'd be better if the electoral boundaries were drawn with a polling-naive algorithm, but that isn't how it works in practice - you've probably noticed that every election is knife edge and there are regular upsets. This is because if one party is guaranteed to lose it will change its policies just enough to attract marginal voters from the other party.
For example, there were confident predictions of a similar nature that the Republicans would be unable to win elections because of the shrinking white demographic. We can see in the polling that what actually starts to happen is Trump still on the ballot but they've been in a long strategic process of picking voters from non-white demographics. The elections themselves are still knife-edge.
There'd be a different policy mix, but one thing we can predict about the future anyway is that there will be different policy mixes. Gerrymandering just privileges minority incumbent policies.
It really isn't. It's self-perpetuating. A gerrymandered state might _eventually_ switch sides, but far more likely it'll become more red (and yes, gerrymandering is predominantly a Republican tactic).
Between 1933 and 1995 we had sixty two years of Democrat party majorities in the U.S. Congress. That was before the Internet and back when the U.S. was less polarized than today. And the Great Depression and the New Deal left the Democrats very popular for decades. Today I don't see how gerrymandering could defeat wave elections. Democrat gerrymandering did not prevent 1994, and Republican gerrymandering did not prevent 2006 and 2008.
That's because historical gerrymandering was not as severe as now. Modern gerrymandering uses computer modeling to slice minorities as thinly as possible, creating insurmountable barriers.
Sure it's something that's been happening for a long time. But it's like comparing hand painting a picture to a modern graphics card rendering a scene 240 times a second and suggesting it's the same thing.
The hell it wasn’t. The year Joe Biden took office in the Senate, Democrats won 10% more House seats than their share of the Congressional popular vote.
You need to realize that the 1967 democratic national convention completely changed the parties. This is important because you’re citing ‘33 Dems as if they’re remotely at all like ‘95 dems.
Democrats before ‘67 were racist as hell. Their southern strategy in ‘67 destroyed the party. Non racist republicans merged with the non racist democrats into the DNC. Racist democrats, pushing the southern strategy, left the DNC and joined the Republican party.
maybe that was true a while ago, but no, it is vigorously practiced by both US Democrats and Republicans in the modern age .. source: quantitative Census demography for urban planning
It's true that both parties take part in it, however Democrats feel forced into it and would rather not. Democrats have repeatedly put forth efforts to end the practice. They have little choice but to play by the rules as they are until they manage to finally put a stop to it.
It’s partly (1) due to the structure (or rather, flaws) of the US constitution, (2) a ridiculous senate rule, and (3) gerrymandering as others have mentioned.
On (1): needing the approval of the senate, house, and president makes it very hard to pass laws.
On (2): the senate rule requiring 60% approval has already been repealed for appointments and for budgetary legislation, but it really needs to thrown out. The first two years of Biden’s presidency were mostly lost to obstructionism because of this rule.
On (3): this will most likely be banned if democrats get a trifecta federal control, and repeal (2), since gerrymandering primarily just benefits republicans.
> Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
One could argue, similarly to overturning Roe, they're diverging from a very critical precedent which is going to trigger a flurry of lawsuits over the next couple years
That was actually addressed on Page 7 of the decision.
They begin with "The stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established,..." and proceed to find the considerations "all weigh in favor of letting Chevron go"
Arguing stare decisis was invalid when the reasoning behind even hearing the case is ideological was necessary- it essentially is the only reasoning they could make.
So what though? I don't know exactly the reasoning for standing requirements, but they clearly weren't intended to prevent suits over things that affect millions of people in exactly the same way. I mean, standing would prevent man from suing to overturn a ban on women voting, but that's clearly a bug, not a feature.
My point is that you can find evidence for any outcome. The Supreme Court has a stance they like and backpedal to make the argument for it leading to inconsistent rulings.
There are a myraid of ways that roe vs wade could've turned out and in the final ruling document they'd all fit the correct format.
> [2] McCorvey gave birth to a daughter at Dallas Osteopathic Hospital on June 2, 1970
At that point she lost standing similar to another Jane Doe whose case became moot because she already had the abortion [1] and the desired action (injunction against an abortion) is irrelevant because it's already happened.
And we could all win the lottery, but let's not pretend half of the elected officials aren't brainwashed and the other half are so deep in pockets they use lint as a throw rug.
Aws compared to the unelected and unaccountable "expert" bureaucrats making arbitrary rules that do things like penalize you for collection rainwater on your own property?
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
What would such a law look like?
Let's pretend we're in congress and want to pass a law limiting pollution in lakes and rivers.
One option would be to have a bunch of experts tell us what we should explicitly ban and write those into the law. This option would mean we need to revisit the law every few years as the science changes and new harmful chemicals are developed or identified.
If instead we want the agency to be able to adapt to new situations, how do we word it in a way that won't be overturned? Congress is in charge of legislating. When does writing rules for what is and isn't pollution cross the line to legislating? Can congress turn any of that power over to executive branch agencies without a separation of powers argument coming up?
I have some views on this supreme court and believe they're driven by ideology and not a consistent legal framework. Even if you believe they are completely impartial how would you protect these laws against a future court that may not be?
Easy, like we do in Europe, by amending the constitution to explicitly allow the Congress to statutorily authorise administrative regulations within the bounds as delegated by the statute.
Likewise Congress could clearly state that agencies are not allowed to interpret the gaps. If Congress was unhappy with how the executive branch was working, it could solve the problem easily and directly. So the Court, when making this decision, was not concerned about what’s “right” or even Constitutional. It showed its hand by disrupting existing rulemaking that has been going on and explicitly allowed by the Court and implicitly granted by Congress for decades.
Changing the status quo on a fundamental de facto government structure is not good judiciating.
I am not surprised that conservative-leaning court has put their finger on the scale of what they always described as “activism of agencies” and “legislating from the bench” by pushing the congress to act - I see it as consistent with conservative principles.
I am not saying I agree with it or condemn it - rather stating the path forward.
I too would like congress to start acting the part. They have the tools.
Congress also possesses a variety of tools to limit obstructionism if it so desires.
But a more important point - is that congress is a tool of democracy itself and is a reflection of the attitudes and desires of the populace. If populace no longer has the aptitude to apply its rights to elect the government that serves its interests - then it will experience the consequences of such negligence and learn from them, which is also its right.
Refusing it that right is something much worse - authoritarianism when an individual or a group gets to pick winners or losers.
I think that's a very simplistic, idealistic view of how the US government works. In reality, the populace is very limited in what changes it can make and which people can realistically become elected. Our electoral system, entrenched two-party system, as well as the prevalence of gerrymandering, all come together to ensure that.
A few decades ago it didn't seem realistic that someone like Barack Obama could be elected President. And yet it happened twice. Our system has some flaws but a bit of idealism is still warranted.
Remember when Obama won? The Republican Party was at a morale nadir, and they rallied together under the banner “1 term president”. They fought every single thing.
Mitt Romney had to oppose his own Medicare plan, which the democrats adopted so that they could find common ground.
Obama winning was probably the last gasp of the system working as it was intended.
There are plans upon plans to ensure the system can never do that. That agencies are weakened, courts are stacked, local elections won, media narratives perfected. It’s tempting to say this is to ensure the “libs” lose, but that only plays back into a narrative and camouflages the issue.
Effective, logical government is itself the problem.
I think that someone is paying attention to the details, to the org charts, to the minutiae of laws, and making a coordinated effort to move things in a single direction.
I dont think what you described counts as idealism anymore.
I don't think that really contradicts what I said. Social attitudes change over time; that's not in dispute. The US is still pretty racist, but has gotten less racist over time. I think things like that absolutely are causes for idealism.
But Obama was still one of a very few options Americans had the opportunity to elect. He ended up in the primaries largely without the involvement of the vast majority of the country. My point isn't that things don't get better, just that we don't get a lot of choices, politically.
(Though if Trump wins this fall, and the right succeeds in their plans for their government "makeover", I think that will set back the "things getting better" train for decades. Hell, our hard-right SCOTUS majority is already unraveling that.)
They could start by changing their rules so that one side can't refuse to legislate. Congress decides how Congress operates, and for some reason despite everyone being awful mad about it, Congress has never decided to make it harder for congress to be obstructed by Congress. They have from time to time made it easier (see filibuster-less filibustering), seems like they could undo that any time they'd like to get back to work.
By winning clear majorities, either "side" can do whatever it wants, including changing all the House/Senate rules to pass laws with simple majorities.
> Changing the status quo on a fundamental de facto government structure is not good judiciating.
Isn't the fundamental structure that the legislative branch writes laws, the judicial brand interprets laws, and the executive branch enacts/enforces laws? That's what I was taught in school.
I don't doubt that this is a political move to shift power from a liberal presidency to a conservative supreme court. But to me it seems like a case of the right thing done for the wrong reason.
I liked this section of Justice Gorsuch's concurrence:
> How bad is the problem? Take just one example. Brand X concerned a law regulating broadband internet services. There, the Court upheld an agency rule adopted by the administration of President George W. Bush because it was premised on a “reasonable” interpretation of the statute. Later, President Barack Obama’s administration rescinded the rule and replaced it with another. Later still, during President Donald J. Trump’s administration, officials replaced that rule with a different one, all before President Joseph R. Biden, Jr.’s administration declared its intention to reverse course for yet a fourth time. Each time, the government claimed its new rule was just as “reasonable” as the last. Rather than promoting reliance by fixing the meaning of the law, Chevron deference engenders constant uncertainty and convulsive change even when the statute at issue itself remains unchanged.
If his complaint is the back-and-forth, this is certainly a look-in-the-mirror moment for Gorsuch and the present court, who've sure made their own notable contributions to whipsaw governance dynamics lately.
If his complaint is that there's an executive discretion in executing the law or the expectation should be that congressional force only goes as far as its ability to write micromanagement into statute then it's hard to restrain from making "do you even constitution bro" or "who are you and why are you wearing that robe" remarks.
(Of course, in representative government, not only elections but agency and judicial appointments have consequences, so while it it may be inconsistent for justices to exercise that privilege for themselves while arguing away the right of another branch to do the same, it is not that big of a surprise, and it is entirely consistent with a philosophy based in elitist privilege for some that is likely behind much of today's ruling among others.)
This is disingenuous. The claim of Chevron supporters is that we need to defer to the agencies because they can make decisions based on technical expertise that the political branches don't have. But the example proves that is not what is happening. The fact that the rules changed every time the administration changed proves that these are, in fact, political decisions being made under the guise of technical expertise. What is really happening is legislation by the executive branch which is blatantly unconstitutional.
If different rulings by different people prove that expertise wasn't applied, it's equally credible to claim that expertise wasn't applied in the creation of this decision, since it's certainly a change.
Additionally, it's far from clear the examples reviewed were representative vs written to support the conclusion, so in addition to the problem of how variance is framed as a bug rather than a feature, it's not even really clear how much is actually occurring.
"Elections have consequences" is a well-known phenomena, and the idea that a branch other than the legislature might have influence over how the law is interpreted or executed shouldn't be news to anybody, least of all a member of the judiciary, many of whom will in fact be no doubt less qualified to make judgments vs agencies with specific technical and legal expertise.
Take the example from this decision itself. The Department of Commerce issued a rule requiring certain fishermen to have federal observers on their boats and pay a fee. This decision was not made with any expertise and is not even the type of decision that can be made scientifically. It is purely a political decision that has nothing to do with any technical expertise. Yet the agency still argued it was unreviewable under Chevron.
It doesn't matter if the example is representative. It doesn't matter if it is 1%, 10%, or 50%. If agencies are able to act as a political branch and use Chevron as a cover to make these political decisions immune to judicial review, then the system is broken and needs to be fixed.
This is like defending qualified immunity for police by saying "well the arrests you presented where the police used the QI defense to cover over egregious rights violations are not a representative sample of all arrests made by the police."
This is so incredibly ignorant, which is fine. We're on a startup forum after all--not a conlaw round table. We aren't supposed to be experts. But to think you have some superior intellectual standing on this issue compared to any of the SCOTUS justices to too much Dunning-Kruger for me to just let slide.
While argument from authority does make sense in a social/political context which functionally defines correctness in terms of authority of appointed office, I'm sure it wouldn't be lost on any seasoned lawyer that it still constitutes a fallacy when it comes to the merits of the argument alone. Similarly no one would know better than a lawyer the distinction between the authority of an opinion and its merits -- or to get less meta and back closer to the specifics of the opinion and surrounding arguments, the fact that multiple arguments can be reasonable and multiple policies might well be not only a side effect but the expected and even perhaps desired outcome of public processes from court decisions (this one obviously different from the one it overturns) to elections.
And part of the point of institutions like courts is that the reasoning is subject to public review and discourse, both institutional and social.
I'm making a specific response to shortcomings apparent in the argument -- the opinion seems to treat the fact of differing interpretation of law or differing policy goals between different executive administrations to be some kind of bug or worse a surprise, when it seems entirely reasonable to expect it as a feature, one that certainly shouldn't be surprising to someone whose whole career (and indeed, features of this very decision) turns on the interpretive range often present within the law.
If you have specific commentary indicating how experts from a conlaw round table might engage this response, by all means, don't "just let slide", enlighten all of us in the course of doing the work that people genuinely combating Dunning-Kruger might do by elaborating on what, specifically, is overlooked in the response or missing from its counterargument.
Insofar as you think you were responding to what you identified (and then conveniently changed to fit your narrative) to be his arguments, I would say it's not hard to see the difference between a law changing every 4-8 years versus once every 40+ years (combined with about 5 years of foreshadowing the changes). You also conveniently run with the "fill in the gaps" narrative, by belittling the scope and impact of these gaps. Trillions have been spent in these gaps. Thousands if not millions of lives have ended due to choices in these gaps. Families torn apart. Suicides. Bankruptcies.
So, for "specific commentary", me, a regular dude, can see straight through them. If you wanted a real, deep Roberts-quality response, you're in the wrong place. None of what you said was even presented in oral arguments, because two of the finest lawyers in the world could also see through that pretentious fallacy filled drivel, and knew that the 9 justices, all of whom are also leagues ahead of you or I in legal knowledge and skill, would equally scoff.
ACB and Jackson? I am about as well-versed in the law as any non-lawyer, and I have 10% at best of the legal knowledge of either of them. The hubris on legal matters of some of the people here is laughable. It's the equivalent of some random law student criticizing John Carmack.
I assume that they were not talking about Jackson.
McConnell blocked the nomination of Merrick Garland for 293 days arguing that there was not enough time before the election.
Then, somehow, they turned around and passed through Amy Coney Barrett in 35 days, instead of following the same precedent of waiting for the election.
The fact that you think this is hypocrisy, and are willing to voice that "opinion" (i.e. regurgitating what some news outlet told you) with such assuredness within this community using such passionate and extreme language is why I find some of the pretentiousness on here to be so bad that I just have to laugh at it.
If you are actually a programmer, figuring you why Garland wasn't a precedent for ACB wouldn't be hard. You just conveniently left out an 'if' statement in your analysis
Notice that whenever there was an A1-A2 party split, especially when a nomination was approaching an election, either the nomination failed, or it didn't succeed until the lame duck (if the president's party won re-election).
The exceptions require some better historical knowledge. For example, Democrats approved Anthony Kennedy (the most liberal justice a modern republican has ever nominated) in late 1987, but only after they had blocked Robert Bork.
The historical precedent for compromise was even in the data: when it was successful, the votes were XX-0
The real failure here was on the part of Obama, who refused to budge at all with the political lean of his nominee. He looked at the polls, saw that Hillary was slated to crush someone who was essentially running as a joke, and thought "I don't need find a bipartisan compromise, Hill will just fill this in January."
But even when it's not close to an election year, look at the Nixon years. Democrats blocking everything until they got nominees they truly approved of. I'm sorry Obama had such hubris as to think Dems were a lock for 2016 that he didn't have to compromise, but he rolled the dice and lost. Sorry. That doesn't make it illegitimate. It makes it the same exact political situation that has always existed.
I think you're misunderstanding. Bork was rejected, with a vote. We are looking at candidates who's vote has lapsed and trying to understand why a vote was never called.
In 1954 John Marshall Harlan II lapsed in November of an Election year. That's probably the precedent you're looking for. The reason you probably didn't include him is because the reason he lapsed and was re-done in the next session of congress was because there was no time, and he was the first nominee to be questioned in front of the senate. So despite the session lapsing, he was again nominated, accepted as a nominee and eventually voted on.
The example before that is Pierce Butler, who again was nominated in November (21st, not an election year), and they couldn't make it before the legislative session ended. Similar to John Marshal Harlan, he was again nominated in December, and voted on in the same month.
The reality is we have to go past William B Hornblower in 1893, and past Stanley Matthews in 1881, all the way to 1866 with Henry Stanbery to find our last instance of a nominee who was lapsed, but not voted on. To skirt their responsibility to vote they passed the Judicial Circuits Act to reduce the number of justices to 7, denying Jackson his right of an appointment.
Looking back to modern day, none of these fit the Garland example.
- Garland was nominated in March, not at all at risk of missing the legislative session
- No Senate has ever decided to skirt it's responsibility by refusing to acknowledge the nominee.
- Garland was a moderate, and likely would have been confirmed. He was previously confirmed to the court of appeals in 1997 by a vote of 76-23.
- There is no precedent for refusing to vote on a nominee in an election year. There have been 7 election year nominations since the civil war, and all 7 were confirmed (only one without a vote)
My original claim was that they are hypocrites, and they are. Amy's nomination was done in an election year, in September before the election.
> The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president. - McConnell (2016)
> I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first time, you can say Lindsey Graham said "let's let the next president, whoever it might be, make that nomination" - Lindsey Graham (2016)
> "I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg." - Lindsey Graham (2020)
----
> look at the Nixon years. Democrats blocking everything until they got nominees they truly approved of.
Untrue, Democrats voted on all 6 of Nixon's nominees, and only 2 were rejected. This is precisely what I mean, even when congress doesn't agree with the president their responsibility is to call the vote, and show the disagreements in the vote.
> Notice that whenever there was an A1-A2 party split, especially when a nomination was approaching an election, either the nomination failed, or it didn't succeed until the lame duck (if the president's party won re-election).
Oh, waaaahhhh. "The mechanism by which GOP blocked it was different from OUR mechanism. The proper way is to waste everyone's time by parading him in front of the Senate, belittling him and his accomplishments publicly, and then rejecting him."
There are only two reasons votes get held: they already know the result, or they want to make senators accountable on record. Either way, it was a waste of time for Garland.
Yes. We do it all the time. And at the margins, sure, it's unfair. But when a random poster using sophomoric logic is going on some pretentious rant about knowing more than Neil Gorsuch, all you need to do is note that one person has spent tens of thousands of hours being aided by the finest educational paths to the job of SCOTUS justice, and one is a professional spamer
Let's judge the ideas/rulings for ourselves, after all we often vote for judges or those who appoint them. Law isn't rocket science. If it's impenetrable to normal people then that also is a problem worth solving.
But fundamentally, how is this different than what the Supreme Court does? The Supreme Court interprets the constitution and its meaning as it relates to whether or not a law is constitutional. The overturning of Roe v Wade is the direct result of the current court saying 'actually, the way we previously interpreted the constitution was wrong'.
We've gone through significant uncertainty and convulsive change as a result of the Supreme Court throwing out decades of precedence. This isn't to say this is always a bad thing, but the reasons for their past few decisions do not pass muster.
It's not. I think this actually flips a lot of power back to the judicial branch in the short term, which is significant because federal judges enjoy lifetime appointments. Of course, Congress has the power to look at unexpected or perverse-seeming judicial outcomes and legislate accordingly, but the legislative process is typically slow and subject to various sorts of bargaining; a rather corruptible process.
>But fundamentally, how is this different than what the Supreme Court does? The Supreme Court interprets the constitution and its meaning as it relates to whether or not a law is constitutional. The overturning of Roe v Wade is the direct result of the current court saying 'actually, the way we previously interpreted the constitution was wrong'.
That's sort of the point, because congress has abdicated their responsibility for so long, many of the "laws" and "rights" that exist in our legal framework are mere shadows of actual legislation. They're executive whims or judicial policies, both of which are inherently fragile and subject to sudden change. Roe v. Wade was the "law of the land" only to the extent that the courts continued to interpret an ambiguity in the law the same way as they always had. Congress had decades to shore up a case that even the jurist who were part of it said was extremely weak. Everyone knew it was fragile and the DNC cashed in on that fragility every election.
Or consider medical marijuana, which is currently only un-prosecuted at the federal level because the president told the DEA to chill out for a bit. The fact that in November the next president could change their mind and conduct federal raids of dispensaries across the country is not a good thing. You might argue that they couldn't do that because the medical marijuana industries and laws are crafted to avoid crossing state lines, but that depends on A) ignoring decades of Wickard (which admittedly the current SCOTUS might be willing to do, but boy if you think this decision or Roe was controversial, that would be a doozy) and B) ignore the very obvious fact that some of that legal supply is leaking across state lines illegally.
The fact that Net Neutrality is on again/off-again is another example of this. Major legal decisions are being left to the whims of two octogenarians who it's a miracle manage to get through the day without shitting their pants, and a judicial system that is inconsistent at the best of times. The courts have always been political, but if they are uniquely so at this time, it's because the folks interested in politics have figured out its easier to get what they want via executive fiat and judicial wrangling, and congress has learned their jobs and income are more secure when they don't have to take the blame for those things.
I agree with Gorsuch's overall point, but he's also writing it knowing full well that today's Congress is not equipped to do all that rulemaking, and not equipped to agree on and pass the huge volume of legislation that would be necessary to duplicate all that rulemaking within the legislative branch.
And he's ok with this, because his political ideology is such that fewer regulations and less rulemaking is a good thing.
Ultimately Congress cannot take on all of the executive branch's current rulemaking authority without some huge changes to how the body works. Those changes will not happen, because conservatives don't want these rules.
Reversing Chevron doesn't mean that Congress has to do all the work. It means that the courts will interpret what the statutory language allows when the agencies do their rulemaking. It's really that simple, and it's not a big deal.
Are those rules necessary? Do those rules have to be implemented at the federal level? Can the states take responsibility for some of the items instead?
The 14th Amendment was unambiguous in its intent, but subsequent malicious/activist judicial shenanigans watered it down, e.g., the Slaughter-House cases and the 1874 Section 1983 deletion.
Congress can still legislate the outer perimeter of a law and let agencies grant exceptions. It just takes a different drafting style, which is easy, and Congressional willingness to accept responsibility for the outer limits, which is hard.
I guarantee you that if Congress passed a law codifying Chevron, this same Court would overrule it on the grounds of some other doctrine they just completely made up in their minds, most likely the major questions doctrine ("MQD"). These self-described "originalists" (side note: "originalism" was invented in the 1980s) just completely made up MQD to justify overruling clear language by Congress if the issue was subjectively large enough. It was used to overrule clear authority given to forgive student debt, for example.
I don't think you understand just how much of a power grab this Court has engaged in, which is funny because its supporters who are the same people who complain about "activist" liberal justices. MQD has essentially usurped the power of the other 2 branches of government whenever they see fit.
Example: in the case yesterday when SCOTUS didn't understand what corruption was they said Congress had had the opportunity to clarify since 1986 and they chose not to so deference should be given to that inaction.
Well, Chevron was decided in 1984 and no administration took action in the last 40 years. Where's that same deference?
The Democrats can be faulted for not codifying Roe v. Wade but I guarantee you that, even if they had, it wouldn't matter. Thsi Court would've found some justification to overrule that. Deference to the states, that sort of thing.
There is no fundamental princples in play here. It's entirely results-oriented.
Where I'm from, our "supreme court" can overthrow congress legislation for not following the constitution. Is this the case here AND is this the case in the US (generally speaking)?
The US Supreme Court can decide what is constitutional, and Congress can amend the constitution that is the basis for the USSC decision (with 2/3 vote).
With the current makeup of Congress, it is unlikely so the USSC holds significantly more effective power than if it had a functioning Congress.
I fully admit that I don’t have a great civics teacher, now more than 20 years ago… but I don’t think this is true? Can anyone else weigh in here?
Edit - wow this is actually true. From white house.gov:
> An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification
Kinda weird to ask, when the answer is five seconds away plugging "US constitution amendment process" into a search engine.
> wow this is actually true
Not sure why you're so surprised about it; consider that the threshold for overriding the president's veto of a regular bill passed by Congress is a two-thirds vote from both the House and Senate. It seems like the bar for amending the constitution should be higher (significantly higher) than that.
Besides that, not involving the state governments at all when amending the constitution feels like it would be a bad move, in a country founded on the idea of strong state leadership and a comparatively weak (though not as weak as some of the founders wanted) central government. Certainly our federal government is even stronger power-wise today than even the more strong-central-government proponents among the founders would have expected.
Right. But the elected officials can vote to remove members of the supreme court (or federal judges in general), though the bar for doing so is set very high. And the supreme court can't remove elected officials. So the supreme court's power over elected officials is not absolute.
The idea in US constitutional law is one of balance: we have three branches of government, and each are granted powers that can act as a check on the powers of the others. It's far from perfect in practice, but the intent is good, I think.
> Shouldn't that require a Constitutional Amendment?
No, Article III § 1 explicitly vests judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” [1].
> Why isn't the investigative/prosecutorial branch distinct from the executive and judicial branches though?
No, to change the separation of powers they need a constitutional amendment because that's a change to the Constitution, and amendments are the process for changing the Constitution.
To interpret what was meant by Liberty and Equality as values, as a strict constructionist.
> The Constitution literally says the Congress has the power to establish inferior courts. Congress setting what is justifiable is highly precedented.
I'm having a great deal of difficulty understanding how you got from "Congress may establish inferior courts" all the way to "Congress has the power to exclude its legislation from judicial review, including that of the Supreme Court itself, at its own prerogative". Could you explain this chain of reasoning?
> The words “separation of powers” never appear in the Constitution. It’s a phrase used to describe the system that document establishes.
Yes, no one argued otherwise. Separation of powers is indeed established by the Constitution, regardless of what specific terminology is used to explain the concept.
Can Congress grant rights? No, because persons have natural rights, inalienable rights; and such enumeration of the rights of persons occurs only in the Declaration, which - along with the Articles of Confederation - frames the intent, spirit, and letter of the Constitution ; which itself very specifically limits the powers of the government and affords a process of amendment wit quorum for changes to such limits of the government in law.
Congress may not delegate right-granting privileges because the legislature hasn't right-granting privileges itself.
The Constitution is very clear that there are to be separate branches; each with limited privileges and immunities, and none with the total immunity of a Tyrant king.
A system of courts to hear offenses per the law determined by the federal and state legislatures with a Federal Constitutional Supremacy Clause, a small federal government, a federal minarchy, and a state divorce from British case law precedent but not common law or Natural Rights.
And so the Constitution limits the powers of each branch of government, and to amend the Constitution requires an amendment.
Why shouldn't we all filibuster court nominations?
Without an independent prosecutor,
Can the - e.g. foreign-installed or otherwise fraudulent - executive obstruct DOJ investigations of themselves that conclude prior to the end of their term by terminating a nominated and confirmed director of an executive DOJ department, install justices with with his signature, and then pardon themselves and their associates?
The Court can or will only hear matters of law. Congress can impune and impeach but they're not trained as prosecutors either; so which competent court will hear such charges? Did any escape charges for war crimes, tortre without due process, terror and fear? Whose former counsel on the court now.
What delegations of power, duties, and immunities can occur without constitutional amendment?
Who's acting president today? Where's your birth certificate? You're not even American.
What amendments could we have?
1. You cannot pardon yourself, even as President. Presidents are not granted total immunity (as was recently claimed before the court), they are granted limited Privileges and Immunities.
2. Term limits for legislators, judges, and what about distinguished public/civil servants who pick expensive fights for the rest of us to fight and pay for? You sold us to the banks. Term limits all around.
3. Your plan must specify investment success and failure criteria. (Plan: policy, legislative bill, program, schedule,)
Can Congress just delegate privileges - for example, un-equal right-granting privileges - without an Amendment, because there is to be a system of lower courts?
Additional things that the Constitution, written in the 1770s, doesn't quite get, handle, or address:
US contractors operating abroad on behalf of the US government must obey US government laws while operating abroad. This includes "torture interrogation contractors" hired by an illegally-renditioning executive.
The Federal and State governments have contracted personal defense services to a privately-owned firm. Are they best legally positioned to defend, and why are they better funded than the military?
What prevents citizens from running a debtor blackmail-able fool - who is 35 and an American citizen - for president and puppeting them remotely?
Too dangerous to gamble.
Executive security clearance polices are determined by the actual installed executive; standard procedure was: tax return, arrest record, level of foreign debt.
Would a president be immune for slaving or otherwise aggravatedly human trafficking a vengeful, resentful prisoner on release who intentionally increases expenses and cuts revenue?
Did their regional accent change after college?
Can it be proven that nobody was remoting through anybody? No, it cannot.
And what about installs ostensibly to protect children in the past being used misappropriatingly for political harassment, intimidation, and blackmail? How should the court address such a hypothetical "yesterday" capability which could be used to investigate but also to tamper with and obstruct? Why haven't such capabilities been used to defend America from all threats foreign and domestic, why are there no countermeasure programs for such for chambers of justice and lawmaking and healthcare at least.
And what about US Marshalls or other protective services with witness protection reidentification authorization saboteurially "covering" for actual Candidate-elects?
Can a president be witness protected - i.e. someone else assumes their identity and assets - one day before or one day after an election? Are Justices protected from such fraud and identity theft either?
You're not even American.
And what about when persons are assailed while reviewing private, sensitive, confidential, or classified evidence; does such assault exfiltrate evidence to otherwise not-closed-door hearings and investigations?
Which are entitled to a private hearing?
Shouldn't prosecute tortuous obstruction? Or should we weakly refuse writ; and is there thus no competent authority (if nobody prosecutes torture and other war crimes)?
Let's all pay for healthcare for one another! Let's all pay for mental healthcare in the United States. A War on Healthcare!
Are branches of government prohibited from installing into, prosecuting, or investigating other branches of government; are there any specific immunities for any officials in any branch in such regard?
How can congress do this if the Supreme Court is going to repeatedly make retroactive changes to what the laws that congress passes mean?
For 40 years, legislation was drafted under the assumption Chevron deference was going to be used to interpret the text of the bills. Now, all of those laws mean something other than what the authors intended.
If this was software, it'd be the equivalent of changing post-K&R C language semantics in a backwards incompatible way, and just saying "Well, if programmers care that industrial control systems are literally burning factories to the ground, they can just fix all the software that was written since 1984. Also, moving forward, we reserve the right to keep making intentionally-breaking changes to the compiler, so during the rewrite, they should take future planned-but-currently-secret semantic changes into account."
> Fundamentally there’s nothing wrong with the position of supreme court to push the responsibility of lawmaking back on congress.
That the court is allowed to exercise power not enumerated anywhere is a major problem, just not a new one. We really should have legislated their role centuries ago.
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
They could--but in the case of the Administrative Procedures Act, which is the law relevant to this case, they didn't. Indeed, as the Court's opinion points out, they did the opposite: the Act explicitly says that the courts shall interpret the law when doing so becomes necessary to resolve a case.
Note that this actually limits the scope of this ruling in a way that does not appear to be recognized by commentators. The Court here is not saying that Congress can no longer pass a law that explicitly grants interpretive power to an executive branch agency. It's just saying that Congress did something different with this law.
Valid point! I’d like to hear more regarding this concern. While I don’t necessarily view what I referred to as “interpreting the gaps” as synonymous with “legislate”, IANAL and would appreciate professional opinion here.
IMO The rule of law derives from precedent. Prior to courts there was the rule of the monarch. The common law then developed as courts resolved disputes. It was all gap. The authorities would say the accused did something wrong and should be punished, and the courts came up with things like “murder” and “negligence.” Statutes are a relatively new way of making laws. They’re crude. Rather than simply resolving a real dispute based on the facts of an actual situation (and limiting the scope to the same or similar situations), legislators twiddle their thumbs and prospectively guess at what situations might occur and which words may address a multitude of unpredictable nuances. Statutes are pretty terrible because they’re so hard to refine. If a situation bumps against the plain language of a statute, the courts are essentially compelled to absurd and unjust results. However, that’s democracy. The people say they want the power to make the law, they say they want the clarity of a statute over a law book, and their errors are better than an overthrow of the system.
Well, for example, the SEC has used a law from 80 years ago about retaining memos as justification for billions in fines against companies whose employees used whatsapp to say "the market is crazy" (or similarly benign things). All they did was "fill in a gap" to make this totally new law.
This is exactly the argument the dissent made: we've had Chevron for 80 years; if Congress was ever unhappy about it, they could have done something about it.
> Congress can actually legislate the right of agencies to interpret the gaps in the laws back into effect - by passing a law that explicitly gives agencies this power.
Congress has already done that. Conservatives don't like that, calling the result the "administrative state". A very strict interpretation of the constitution could suggest that Congress cannot actually delegate legislative powers to executive branch agencies, and the conservative members of SCOTUS are (unfortunately) free to take up that interpretation.
acting for political expedience? They are making heavily impactful, politically unpopular moves to correct what they believe to be long term errors buried in court precedent.
It's politically expedient for their goals, your post explains exactly why: they are hugely unpopular moves, if for any reason, because of the tremendous uncertainty they create in the law at large.
I don’t buy the idea that this creates uncertainty. When I read a statute I have a level of certainty as to what it means. When I read executive branch rules interpreting the statute I have a better understanding of what the executive intends to do, but - as they don’t write the law - it doesn’t provide much clarity as to what the statute actually means. The executive can and should continue to provide guidance about its intentions, but saying that the law is whatever the executive intends it to be is smoke.
Congress cannot divest its legislative power, nor can it vest interpretive power to executive-branch agencies. The judiciary interprets law— not Congress.
There's no issue with Congress interpreting laws here. The executive branch is (was). Which they have to do because how do you enforce a law that you do not have an interpretation of? If Congress disagrees with the judiciary's interpretation they can just pass a law that makes their interpretation the literal law.
Congressional incompetence is partially an act. They spend most of the year deflecting and complaining that they can’t get anything done, then in a burst here and there, they kick out a multitude of new laws. There’s a substantial level of political theater. Neither side wants to tell their base that they’re wrong. It’s easier to say that the other side is blocking them and golly gee I’m doing everything I can.
It's worth reading the judgement itself. The court has indeed voted to give the courts more power, but not on the basis of nothing. It did so because it views it as taking back powers that were incorrectly/lazily given up without basis in what Congress wanted. From the judgement:
Congress in 1946 enacted the APA [Administrative
Procedures Act] “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal
questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, 5 U. S. C. §706 (emphasis added)—even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding
This feels like one of those topics that may sound ok in theory, but breaks down in practice. The implication is that the judges must be well-versed enough in any domain brought before them to interpret the laws effectively. This seems like a tall order for nine people. We have already seen this trouble in expecting strict interpretations regarding tech.
To be fair, Congress has the same problem. I believe that was in large part the impetus for giving the agencies discretion. They have a better chance of having the depth of expertise to craft effective regulations.
The Supreme Court doesn't resolve cases directly, they resolve questions of law for lower courts to take into account. They are meant to be experts in law, so there's no problem there. The lower courts can't be experts in everything, but bear in mind two things:
1. Courts have expert witnesses and a whole system around how they are called, challenged and questioned. Judges are trained to learn what they need to know from witnesses.
2. Good court systems do have expert judges they can draw on.
I recently took part in the Craig Wright case in the UK as a witness. Wright forged enormous quantities of evidence and proving the forgeries often required deep technical knowledge about file metadata, how computers worked etc. Fortunately the judge was deeply technical himself, being often a judge on complex patent cases, and had no difficulty with any of the complexities.
It reads like it creates a deliberate impasse. The opinion states that ambiguities in law no longer implicitly give agencies discretion. That means Congress has to write unambiguous laws. But my original post acknowledges they cannot. Based on this ruling, it seems like anything other than a perfect, airtight law means it's effectively non-enforceable. So where does that leave us? It seems like the SC has laid the table for constant rules-lawyering by corporations to get whatever they want. In other words, they've let the perfect be the enemy of the good.
> That means Congress has to write unambiguous laws
I don't understand where this belief is coming from. The judgement explicitly states that writing unambiguous laws isn't possible. There will still be ambiguous laws, and those ambiguities will still be resolved. The only matter being decided on is who gets to resolve ambiguities - is it the agencies or is it the courts.
Let's put this another way. Did Congress have to write unambiguous laws or have them be unenforceable before 1984? Clearly not. The Constitution itself is ambiguous on many points. Do other countries, which lack any equivalent of Chevron deference, have to write unambiguous laws or have them be unenforceable? Again, clearly not.
>The only matter being decided on is who gets to resolve ambiguities - is it the agencies or is it the courts.
I think we are agreeing here. I think the distinction is that I'm claiming the courts would need (yet don't have) the expertise to clear up ambiguities in such domains. Where do I get this claim? From the justices themselves.[1] There is evidence they are overly confident in their understanding when "doing their own research" on a domain outside their expertise.[2]
So given that context, it's probably a bad idea to have justices decide on ambiguities. But if that power resides in them now, it means the only way to have effective laws is to avoid ambiguities in the first place. That's why I stated that is now on Congress. However, the court is also acknowledging that isn't possible. That's why I originally said it reads like they created a deliberate stalemate. From the court we have the following:
1) Congress cannot be expected to create unambiguous laws.
2) It is the court's job to resolve ambiguities.
3) The court lacks domain expertise.
I'm claiming those set up a natural conflict because expertise is necessary to effectively resolve ambiguity.
The most generous interpretation is that the justices don't need to know the details of the domain expertise, but rather just need to know how it interfaces with people and the law.[3] I'm pretty skeptical of that leading to good outcomes in complex, nuanced situations. I don't think we can pretend law is abstractly disconnected from the complex systems it regulates. As society progresses, most things get more complex so I expect the problem to get worse, not better.
Remember that law is first and foremost meant to be read by ordinary people, as they are the ones expected to know it and follow it. Ignorance of the law is not an excuse, etc. If a law is so difficult that even a judge armed with a courtroom full of expert witnesses can't figure out what it means it should not exist, because how could any actual citizen be expected to understand or obey it? People who write such laws don't get to whinge when other people try to clean up their mess.
There's certainly no evidence of an attempt to create a deliberate stalemate here, as "laws that judges cannot interpret even with help" isn't something the Supreme Court is going to consider a legitimate problem to begin with so why would they consider it? But it's fascinating the degree to which some people on this thread are sure this is all a cunning secret plan by the justices to advance a political ideology. Projection, much?
> There is evidence they are overly confident in their understanding when "doing their own research" on a domain outside their expertise.[2]
Great. So are regulators, politicians and especially journalists. The idea that agencies never rely on bogus claims or statistics is a deeply romantic view.
Really, I don't have any sympathy for the US regulatory agencies on this issue. Too many of them have a history of abusing Chevron deference. If the deference standard had any advantage at all it'd be that you could get binding rulings from regulators ahead of time, without needing to actually end up in court first. But regulators always refuse to do that, because they aren't obliged to and it would reduce their options. Instead what they do is make vague rules, tell citizens (e.g. entrepreneurs) who ask for clarification to get lost, wait years for some of those people to make successful businesses and then decide that what they were doing had been illegal all along under some strange interpretation of the relevant rule. It's a form of retroactive lawmaking, which is forbidden by basically any constitution because the whole point of law is that people are meant to be able to follow it.
This sort of abusive behavior is so common it's clearly deliberate. Instead of helping society, the agencies end up working against it in order to maximize their own power.
Having the people who interpret laws be fully separated from those who write the laws aligns incentives properly: there's no longer any benefit to passing maximally vague or contradictory rules in the hope of being able to do whatever you want later. Laws that are as specific and clear as possible is exactly what a society needs to succeed, because when the rules are clear people are free to innovate and do business without fear.
>So are regulators, politicians and especially journalists
Yes. The important distinction that I drew was that the power is now vested in a very small group of nine people. IMO that measures it much easier for biases to continue unabated. At least in large numbers, there are more likely to be more rational viewpoints to counter our innate biases.
> At least in large numbers, there are more likely to be more rational viewpoints to counter our innate biases.
Maybe, but there is absolutely no mechanism to ensure that rational viewpoints will prevail in a group of large numbers, and quite a large danger of social pressure causing less rational viewpoints to prevail instead.
The court previously provided those guardrails. With Chevron deference, the agencies could clear up ambiguities, but the court could reel them back if they were found to be unreasonable. Now, there is no check-and-balance; the entire power resides in the court. In the words of Justice Kagan, that is "judicial hubris."
If the court makes an unreasonable interpretation, the only mechanism to rectify it is for Congress to be explicit. This has multiple problems: first, getting anything through Congress is becoming increasingly difficult. Secondly, the Court already admitted that laws will always have ambiguities because Congress doesn't always have the expertise to be that explicit. From that standpoint, the Court has claimed a power while acknowledging there is very little in terms of a check on that power.
Yes, that's my point. An agency interpreting the law that governs their mandate is at least nominally trying to do so in a manner that yields effective policy, but that's not really a goal of the courts, so letting the courts defer to the agencies probably will produce better policy then leaving it up to case law.
> An agency interpreting the law that governs their mandate is at least nominally trying to do so in a manner that yields effective policy
Ideally. In practice ambiguities in statutes governing agency mandates are always interpreted by agencies in whatever way would maximize their own options and power. That's the written justification for the APA in the first place: reeling in excessive "zeal" amongst administrators.
The courts don't get powers from the law directly (except meta-powers like the one this case is about), so there's no direct benefit to judges from interpreting law in a maximally agency-advantageous way. That's why countries (not just the US) have courts resolve ambiguous law. It's a core part of their job.
Yeah, but giving too much deference to agencies is also a recipe for peoples' rights to be trampled by a regulatory agency acting unlawfully. Acting in accordance with their policy goals is fine and all, but they still have to do so within the bounds of the law and if they're losing at the District level because they can't rely on Chevron deference anymore, I mean, that's completely fine. Go back to Congress.
How does this ruling fix that issue when the court admits it’s impossible to avoid ambiguous laws? Now it’s just unelected justices deciding instead of unelected agency bureaucrats. I think there’s an argument that could be worse, given the lifetime appointments of the court; at least the people have the chance to course correct the executive branch every four years.
I think we can all agree that the best solution is unambiguous laws, but that’s an impossibility by the courts own admission. Chevron already had a mechanism to prevent agency overreach by giving the court discretion to determine the reasonableness of an agency interpretation. This now just puts the onus on the court to do it all, and they admit they don’t have domain expertise. I fail to see how that is a better solution.
The great thing about an adversarial court system is when the challenge before the court is that a private party is challenging the agency’s interpretation of the law, they have to make their own case about it and convince a Judge that they’re right and the text of the law is available for all to read. Given that agencies are charged with enforcing the law, they should know the laws they are enforcing and their own authorizing statues better than anyone, and if that’s the case, they are still arguing from a position of strength. What’s changed here is that a Court is not obliged to defer to the agency’s interpretation in most cases.
I don’t want the domain experts to have an easy time of it. The law is not their convenience, it is for the peace and prosperity of the Republic, and given that Agency interpretations can change on a dime (up until recently) with almost minimal justification from a new administration, I don’t want to defer to staff who are charged with interpreting laws in a way more favorably for their new bosses, even if it goes against how they did business under their old ones to have an easier time making their case in court. The law should be more concrete than some mere electoral promises and wishful policy-thinking.
I just to work for one of the leading expert witnesses in the country. Expert witnesses are just advocates, hired by a client, who know how to throw fancy words around in a soothing, confident manner that makes the listener feel smart.
Nobody has a career as an expert witness for long if they go against a client's wishes. There is no such thing as an impartial expert witness in the current system. They're all hired by one side or the other. They're basically subject-matter expert lawyers.
> There is no such thing as an impartial expert witness in the current system
You're saying a form is bad because it doesn't line up with how it ought to be (you said "impartial"). But in saying so, you imply there is an ought. That is the real form (what it ought to be): an impartial expert witness.
When a form only presently exists in an abuse thereof, that doesn't necessarily invalidate the form as a worthy pursuit.
History can tell us whether such a form is worth pursuing. Expert witnesses in the US have been more or less impartial in the past. Communism has never been achieved, and its pursuit has never led to well-being of the people. Both are "ideal forms" in a philosophical sense, but history bears out which is worth pursuing and practically achievable.
So my take is that what's needed is reform of expert testimony through congressional law, including independent review of DAs, to ensure they prosecute expert witnesses who failed a legal impartiality test.
Expert witnesses are already required to be impartial. There's currently an inquiry in the UK over a massive miscarriage of justice caused by an expert witness going rogue and letting prosecutors put words in his mouth, etc. A big part of the scandal is that prosecutors were meant to inform him of his legal duty to be neutral and share all the facts, but they didn't, so now he's claiming he didn't realize he was required to share all relevant facts including those negative for the prosecution.
There's a difference between a requirement and its enforcement.
I'm arguing for better enforcement via law, to ensure witnesses are either impartial or prosecuted for impartiality.
If partial witnesses aren't being prosecuted, then launch an inquiry and do a causal chain analysis. It's bound to turn up a root problem that is solvable.
This is a common philosophical/ideological difference.
The left tend to argue that impartial people exist, and that they are numerous/easy to find.
The right tend to argue that there's no such thing as an impartial person, that you can get people who start out partial and do their best to be fair (e.g. judges) but it takes constantly training, reinforcements and incentives to do that and there's always the danger of slipping back. You definitely can't assume it.
The adversarial court system is based on the right-leaning belief: although expert witnesses are told to be impartial, the system doesn't assume this is enough and so witnesses are called by one side and cross-examined by the other. The lawyer's job is to sniff out any signs of bias or incompetence.
> This feels like one of those topics that may sound ok in theory, but breaks down in practice. The implication is that the judges must be well-versed enough in any domain brought before them to interpret the laws effectively
No -- subject matter expertise is not relevant per se, as what is being evaluated in these cases is not whether the policy advanced by a given agency is sound on its technical merits or factual basis, but whether it is within the bounds of the authority granted to that agency by the applicable statutes.
The courts aren't concerned with "crafting effective regulations", they are concerned with ensuring that the people who are tasked with doing so are operating consistently with prevailing statute law and the constitution.
And, considering that the judiciary is staffed with the world's foremost experts in statutory interpretation and constitutional law, this arrangement makes sure that all of the disparate facets of the process are being undertaken by the most qualified people available.
It's not appropriate to make officials who are hired on the basis of their knowledge of medicine, RF transmission, economics, etc. to bear the entire burden of determining the complex legalities of their authority. They have to step far outside their field of expertise and engage in textual analysis of statutory law or delve deep into constitutional theory to determine whether their rule-making process is indeed legally permissible. It's better to let the courts do their job here and tell them when they are out of line, so they can focus on doing their own jobs properly.
Maybe I’m misunderstanding, but what you’re describing sounds like what I thought the case was before this ruling. The courts were deciding on the reasonableness of the agency interpretation. Now it sounds like the court is interpreting directly. To do the latter effectively, I still maintain you need a solid expert understanding of the domain.
It sounds like we disagree on who is better equipped to make the kinds of interpretations necessary for effective policy. Like I said in another post, I don’t think we can pretend law can be abstracted and cleaved from the systems it regulates. The court admits they don’t have expertise in those systems. That makes me feel they are ill-equipped for the types of interpretations.
What you had understood and what he's describing is the situation pre-1984 and now post this judgement.
I think a lot of the reason this thread has blown up is that the Chevron doctrine was really very strange and not at all how you'd expect the US legal system to have been working. It doesn't line up with any standard teaching of civics, for instance. The Supreme Court clearly felt the same way and has now instructed courts to go back to doing what everyone thought they were doing already.
I don’t know that I agree. It’s exactly the understanding I was given from an engineering law course, for example. Prior to this ruling, the regulatory agencies were given latitude to interpret ambiguous law as long as they were determined reasonable by the court. It’s also what I think most people understand, given the way people rail against agencies rather than statutes.
To be clear, I think there is a distinction between declaring if a law is constitutional and resolving ambiguities for non-constitutional, domain specific issues. I think the court is eminently qualified in one area, but much less so (by their own admission) in the other. I think those are two different aspects that often get conflated.
Yes, you are misunderstanding. Chevron obligated the courts to defer to agencies' own internal interpretation of statute law whenever any ambiguity arose as to what the law said. Reversing Chevron has restored that function to the judiciary, where it belongs.
I’m not misunderstanding then. Chevron still deferred interpreting ambiguity to the agency, but the courts could still check that based on a reasonableness standard. Now the court gets both aspects. Our difference is that I think that is a less good outcome because I believe domain expertise is necessary to effectively clear up ambiguity and the court admits they do not have that kind of domain expertise.
I think the court should reserve power for constitutionality (their domain expertise) and leave resolving the ambiguity outside that to the regulatory experts of those respective domains.
> I’m not misunderstanding then. Chevron still deferred interpreting ambiguity to the agency, but the courts could still check that based on a reasonableness standard.
No, you are definitely misunderstanding. Chevron delegated a core duty of the judiciary to executive branch officials with no expertise in that field. The "reasonableness" standard you was a limited and constrained version of reasonableness standards devised and applied by courts in normal statutory interpretation, and deprived the courts of the power to fully exercise their duty.
> Now the court gets both aspects.
No, there is only one aspect here.
> Our difference is that I think that is a less good outcome because I believe domain expertise is necessary to effectively clear up ambiguity and the court admits they do not have that kind of domain expertise.
The domain expertise of the regulators in the field of regulation is irrelevant here, because the cases that go before the court are not about what measures are likely to be effective in fulfilling the agency's mandate, it's about what measures are legally permissible.
> I think the court should reserve power for constitutionality (their domain expertise) and leave resolving the ambiguity outside that to the regulatory experts of those respective domains.
The only domain at question here is the domain of interpreting the law, and the relevant experts in that are the judiciary themselves. You are conflating together completely distinct matters.
If you’re claiming the courts have more non-law domain expertise than agencies, you’ll need some evidence of that for this point to land.
If you look to Chevron for a concrete example, the issue was about the ambiguity of the scope of a “source” of emissions. That is not a law question because the law already deemed that sources can be regulated. It’s really a question of non-law domain expertise in terms of the definition of an emission source.
> If you’re claiming the courts have more non-law domain expertise than agencies, you’ll need some evidence of that for this point to land.
No, I'm not claiming that. I'm not sure what that has to do with this discussion at all, though, because non-law domain experience has nothing to do with domain experience in interpreting laws.
> If you look to Chevron for a concrete example, the issue was about the ambiguity of the scope of a “source” of emissions. That is not a law question because the law already deemed that sources can be regulated.
Huh? If the law says "sources can be regulated", then the question of what the statute means by "source" is 100% a legal question of statutory interpretation!
> It’s really a question of non-law domain expertise in terms of the definition of an emission source.
No, it absolutely is not! Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to. It is 100% the role of the courts to analyse the statutory text written by Congress and determine whether the agency is or is not operating within the authority that Congress established.
>I'm not sure what that has to do with this discussion at all, though
I would argue that is the central claim. Something can be law and ambiguous. The role of the court previously was to ensure the first part: that the law is Constitutional. Outside of Maybury I don't think anyone is disputing that. The difference is that this now says the arbiter of ambiguity is now the court.
Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality; that is a much more narrow scope than what you're presuming. In many (most) court rulings, they are very deliberate in keeping the scope as narrow as possible. This ruling is one of the exceptions, not the rule. But you don't have to take it from me. Justice Kagan states:
"Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not...In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar."
>Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to.
I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities. Again, the role of the court is best suited to what they have expertise in: determining constitutionality. Defining what an "emission source" (or any other domain expertise question) is outside that scope.
I would argue that becoming an "administrative czar" oversteps the bounds of a judiciary responsible for determining constitutionality to one that blurs the lines with the executive branch. In Kagan's words, it becomes an act of "judicial hubris."
> The role of the court previously was to ensure the first part: that the law is Constitutional.
No. The role of the court is, and always has been, to determine what the law is -- constitutional law, statute law, common law, all of it. Forget Maybury and think Marbury. Chevron was an unjustifiable deviation from what has been the unambiguous responsibility of the courts for the entirety of their history.
> Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality;
No, as above, the courts role is determining the meaning of the law. The constitution happens to be the supreme source of law, but it is and always has been the courts' job to interpret law from all subordinate sources as well.
> I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities.
I'm not sure what you are saying you don't think is correct. No one claimed that Congress makes perfectly unambiguous laws -- that is impossible. Rather, Congress passes statutes using specific verbiage, and the responsibility for -- and expertise in -- interpreting that verbiage and clearing up ambiguities is and always has been the domain of the courts, and absolutely not the unaccountable province of people with no expertise in statutory interpretation who have an inherent interest in interpreting their own authority to be as expansive as possible.
I misinterpreted your saying Congress uses specific verbiage to mean that wording is sufficient to avoid ambiguity. You keep repeating the same thing but not really addressing the core point.
I fully acknowledge the difference in opinion here. One side thinks the court has the duty to clear up ambiguity. The other thinks that better resides in the agencies. It’s literally the difference between the ruling and dissenting opinions of the court decision.
My claim is that in a modern society, clearing up that ambiguity requires domain expertise. Just hand waving it away and saying “this is the way it’s always been” (even though that’s not true since that wasn’t the case for the last 40 years) doesn’t actually address that point. So in your opinion, do the complexities of modern society not matter? If not, you’re implying we can bring back a Justice from the 1790s and they can effectively rule on issues related to climate change, the internet, genetics, pharmaceuticals etc. After all, they don’t need any domain knowledge. I disagree; I’ve steelmanned your argument elsewhere in this thread and still find it lacking. The point isn’t “to do things like they were always done before” but the “create a more perfect Union.” I think allowing domain experts to clarify complex issues, within the confines set by the court, is a better system and you haven’t done anything to explain why it isn’t. It comes across as much more about ideology than effective governance.
This is the Supreme Court that has repeatedly made subject-matter related arguments (particularly historical arguments) while ignoring the input of subject-matter experts.
As a legal dilettante I have some questions: What does this decision mean for court caseload going forward? If it will increase, how much? Is there budget for that?
There seem to be a lot of posts in this thread that are misinterpreting what the judgement means. Here's what I understood from reading it:
• This case does not affect Congress' ability to delegate defined lawmaking powers to the executive. Congress can continue to delegate whatever they want.
• It will therefore not have any impact on the speed with which the US government can pass laws.
• It does not award the courts any new powers.
• What it does is go back to the pre-1984 system in which the meaning of ambiguous rules were decided by the courts.
• It does so on the basis of a specific law called the APA, in which Congress spelled out that the courts should defer to agencies on matters of fact, but does not say courts should defer to agencies on how to interpret ambiguous law. Also that law was passed specifically to limit the powers of the executive. So, their ruling seems founded in the will of Congress.
Because ambiguous rules would have to be decided on anyway, and they were already being decided in the context of a court case, this won't affect the number of cases being decided.
I think the only way to attack this ruling would be to show that there was some law that superceded or replaced the APA, or that the relevant section of the APA itself was unconstitutional. But why would it be? As the court points out, the fact that ambiguous law is interpreted by the courts is a very old and unremarkable arrangement. The Chevron decision was the radical deviation from normal practice, reversing it just puts things back to how most people already think it works.
Case load is simply the number of active cases and therefore not limited to the number of cases but also includes how long each case takes to complete.
As this requires judges to consider a wider range of options it inherently means these cases will take longer thus increasing caseload. Further, it also means bringing these cases before the court will get more expensive as individual cases take longer.
You're assuming that judges are slower to resolve ambiguities than regulators are. My experience with regulators has been that often they not only let the law be ambiguous for years despite repeated requests for them to make a decision, but are then fond of retroactively and suddenly "clarifying" things in response to shifting political/media winds. Nor do they feel any obligation to be consistent with past rulings.
Courts are at least expected to make progress on cases as they are brought, to be roughly consistent with past case law, and they aren't allowed to just refuse to make a decision for a decade and return to it when it's suddenly in the newspapers.
None of what you mention really applies to specific court cases.
A judge can either defer to the agency involved, or spend a while digging into the underlying intent etc. The second may be “Better” or “Worse”, but if nothing else the first is faster.
It takes away power from the legislative and executive branches because it now requires an onerous level of specificity to regulate something. This decision will have lasting negative consequences.
Another user has raised the other side of my question, while exaggerated, is this more accurate as to what will happen than the thrust of my original question? Do we need to increase the budget for Congressional aides?
> The Roberts Court just decided to increase Congress' workload 100000x
No, again, I don't understand where commenters are getting this idea from. The ruling does not require laws to be unambiguous. It only changes who is responsible for resolving ambiguity (changes it back). The entire system will do about as much work as it was doing before. At a stretch, you could say that maybe some funding would need to be reallocated from regulators to the courts, but one would hope that "cost of interpreting ambiguous laws" is not a meaningfully large line item in the US government budget.
Now leaving the specific judgement aside for a second, IMHO - not worth much as an outsider - Congress certainly should write more precise laws and maybe hire more aides to help them do that. All governments could do better on that front. Clear law is worth its weight in gold for creating a stable and prosperous society because when people know what they can and cannot do it's less risk to create new companies, less risk to create new products, and less time is spent in courtrooms arguing disputes caused by ambiguity. A lot of people commenting on this thread seem to fear a general breakdown if lawmakers are required to do a better job of writing law, but my personal experience of regulation (limited but not zero) has been that laws that have gone via a parliament or Congress are already higher quality than administratively issued regulations. The idea that the former are written by incompetents and the latter by experts is an intuitive one, but doesn't seem to be borne out in practice.
Also, as a general aside, I think Americans should appreciate Congress more than they do. It's popular to take a dump on them but if you compare to other governments around the world US law is fairly high quality. A big part of the success of the US economy and tech industry is related to what Congress does and doesn't do. For example the DMCA was unpopular when it passed but it laid the foundation for the dominance of Silicon Valley today. Apparently most Americans like their own Congressman/woman even whilst feeling the institution itself does a bad job, but this may just reflect the fact that America is very large and diverse, so inevitably a talking shop where people from different parts spend all day disagreeing with each other will seem dysfunctional.
I think you are missing the big picture. This ruling is setting the stage for a new regulatory regime. The lower courts see where this Supreme Court is going and they are going to overturn any regulatory ruling that has any semblance of ambiguity in the underlying law. What matters is the direction the court is going and what it is signaling with this ruling.
By the way, requirement of minimising ambiguity, and explicit limitation of delegation are not specific to the US. High courts of many other countries enforce this very standard.
What other countries do is not something I care about as far as SCOTUS goes. We don’t have parliamentary system that most other countries have and rewriting 40 years of legislation in the U.S. is lot harder to do in than in most other countries.
This ruling doesn't say courts have to overturn decisions based in ambiguous law, it says the courts have to make up their own mind about the decision. That decision may also be that they agree with the agency interpretation and choosing to uphold it.
The lower courts see where the Supreme Court is heading and they will rule accordingly. I could be wrong. In a few years I think you will see that I’m right.
>Because ambiguous rules would have to be decided on anyway
I think the implication by the OP was that they would now have to be decide by the court instead of by the executive branch agencies. Previously, those agency decisions could be brought to the court, but they didn't have to for an interpretation. That seems like a subtle but important nuance.
It won't affect caseload so much as it will affect the balance of power in settlement negotiations. Source: I used to be a lawyer who worked in a heavily regulated field.
From my understanding of political science classes, this is how the founders wrote it to be.
Actually, it's supposed to be like this…
Congress writes laws. Executive interprets those laws and decides ambiguities on its own. Some of those ambiguities are contested so courts decide the outcome. If that court’s outcome is contested, then Congress makes a new ruling explicitly stating what they want. Then it repeats.
It’s a cycle of checks and balances that is supposed to loop back into itself.
> It’s a cycle of checks and balances that is supposed to loop back into itself.
Except that the US doesn't have a functioning legislative branch, so the corrective feedback action never happens. The justices who are making these rulings, and their clients, are very well aware of this.
Then the voters should kick the bastards out. That's the biggest check on the legislative branch, it has pretty fast turnover.
Now, if you have a population that doesn't want to elect lawmakers who will actually pass laws...well, that sucks, but it's kind of working as designed.
>> Now, if you have a population that doesn't want to elect lawmakers who will actually pass laws
The population as a whole _does_ want lawmakers who will pass laws, however that collides with the structural misrepresentation built into the US electoral system.
The fundamental problem with this statement is that it assumes both sides of the coin are the same. However, it's far easier to block legislation in the current system than it is to get it passed. Combine that with the hyper partisanship of recent years and you have a recipe for legislative paralysis.
Now, if we didn't have the filibuster or senators were assigned based on population, it would be a different matter. Suffice it to say that we already have a pretty big check on govt power via these mechanisms, so the conservative talking point of preventing 'overreach' by government rings hollow.
>>>that collides with the structural misrepresentation built into the US electoral system.
I never know quite how to respond to this, because (as an outsider) the US electoral system has been designed in a way that is misrepresentative but for very clear reasons.
Part of the 'pitch' for the smaller states to join the union was that they would retain some power, mostly via the electoral college and senate (yes, they still get over-represented in the house, but less so). If the pitch was "you get nothing and we can bulldoze your state" Wyoming would have just said "no thanks, we'll stick to ourselves/join another union". If you think of states as entities worth protecting, assigning senators per state is quite reasonable.
Fast forward two hundred years and we have a different view of states, care more for the individuals inside them, and it indeed seems unfair that Wyoming and California both get 2 senators. What's the fix?
It doesn't take a whole population to grind the process to a halt - just a legislator or two, and not passing legislation is just as important to some voters as passing legislation is to others.
It only takes a legislator or two because of the policies and procedures the other legislators agree to. They are free at any time to change their rules of procedure. A filibuster without requiring actual filibustering is a process congress agrees to have, not something prescribed for them from on high. Almost their entire process is something they have all agreed to, if congress is easily deadlocked by one or two legislators, it is because congress does not want that to change.
The problem is that we have FPTP elections which mean the alternate candidates are non-viable. Anyone who can fundraise for a successful primary campaign has enough ties to moneyed interests to become part of the swamp.
It really doesn't, but I understand this is a very popular albeit destructive way of thinking.
There is much more to you as a member of society than your single vote. You get to vote for many people in many different elections. You also can get civically engaged in many different ways.
This is just blatantly wrong. Look at how many votes it takes to seat a Wyoming senator versus a New York senator. Look at the electoral college. Look at the frozen House of Representatives size and the further imbalances this creates in favor of low population states. The compromises made to appease slave holding states have had long lasting repercussions on this country.
The electoral college is the reason that several presidents over the last 40 years have lost the popular vote and won the election. George W. Bush was one of the first presidents to do this. If you combine electoral college votes by population with our system of winner takes all then a few very agitated rural areas in a state with few populous cities can completely dictate the outcome of the election.
> There is much more to you as a member of society than your single vote. You get to vote for many people in many different elections. You also can get civically engaged in many different ways.
Civic engagement requires more than filling out a ballot
As explained in the dissent, they literally have to delegate the kind of authority in question here. It’s the hostile-genie problem: you can’t close all the loopholes in some iron-clad unambiguous way in finite space.
those loopholes and ambiguities should be left to the courts to decide with representation from both sides of the argument making their case and not some department head full of political bias and possibly an axe to grind favoring one side.
This assumes a US Supreme Court that doesn’t exist in 2024. If you want it changed, you would have to either wait till the judges change, or expand the courts.
No, their role is a lot larger than that and plenty of legal questions don’t hinge on this kind of thing. This is specifically about whether to tend to defer to agencies on the interpretation of definitions of terms and similar things related to their mandate, so long as they remain within the bounds of reason and plausibility.
A judge could go “nope, per Chevron this EPA interpretation of ‘pollutant’ looks reasonable in this context, that complaint is dismissed, but the rest of the suit may proceed”. Now they’re expected to let those arguments play out. But answering that particular kind of question definitely is not the whole point of the judiciary.
It seems crazy that Congress does not have the authority to delegate implementation details to experts. I just don't see anything in the Constitution that forbids that.
Exactly, only when convenient. A glaring example of this is when they decided that section 3 of the Fourteenth Amendment did not disqualify Trump from the ballot. The plain language is not complicated:
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No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
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Note that this amendment provides a legislative remedy: Congress can remove the disability by a two-thirds vote. Textualism, but only when it serves their purposes.
But that’s the point! The liberal justices could rule by taking into account any number of contingent factors established by decades of precedent. But the strict constitutionalists - the conservatives - should have ruled according to the text of the constitution, which is what they constantly claim they are doing. Except it seems to be just when that happens to coincide with their ideological priors.
> The actual ruling was NOT an "textualist" interpretation at all.
That’s precisely my point. They are textualists when it’s convenient. When the textualist outcome would be unsatisfactory from an ideological perspective, then they aren’t textualists any more.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Anything short of "all" contradicts that.
Now you need to find somewhere that says "Oh, btw.. we didn't mean 'All' but really 'some' because Congress might give some legislative powers to other branches."
That doesn't seen like a reasonable interpretation. The power is vested in Congress, so they can use it. Delegating authority to an agent is not exactly novel and it definitely doesn't somehow mean that Congress no longer has that power.
So if I give you complete authority to design and implement a new exommerce system, it means you must do it single-handedly with no delegation to anyone?
This “anything not expressly allowed must be forbidden” is the exact opposite of how US law works.
Do you understand the implication of the answer to that question being "No, and it cannot delegate those powers"?
Congress would have to vote on giving approval for each new drug, not the FDA's bureaucrats.
Congress would have to vote on each individual edge case for welfare programs (SNAP, Social Security, Medicaid, etc), not their respective agencies.
Congress would have to vote on which individual people get Pell grants, how much, and how much their parents are expected to contribute to their university schooling, not the Department of Education.
Congress would have to vote to approve contracts for every federal agency.
The federal government would not function without some degree of delegation.
You don't change the law every time a new drug gets approved, you grant it certification (the framework of which is based in existing legislation). You'd only need Congress to get involved if you wanted to change the approval process itself
The constitution arguably wasn't designed for a government that did much of what it's doing. Shouldn't be hard to pass an amendment to legalize it if it's that necessary right? We needed an amendment just to federally ban booze for God's sake.
The problem I have—even with a functional Congress—is that laws will be passed with political kickbacks in mind. Irrelevant nonsense like dairy subsidies tied to telecommunications regulation to secure the necessary votes.
If you ignore the labels here, it's a small group of lawyers giving themselves more power because the large group of politicians can't get their act together and pass well-reasoned and descriptive laws.
So the large body isn't functioning well and the small body doesn't trust it anymore. So if we make the small body (the supreme court) large like the large body (congress) will that actually fix the issue?
Isn't the issue that politicians are corrupt and ignorant of actual expertise in the areas of the laws they pass? How will the Supreme Court overcome this same issue?
Congress may be inefficient (by design, basically) but they have one advantage: they're elected. Everyone fantasizes about government by an unelected group of experts, until they wake up one day and find out those unelected experts don't share their values at all -- and there's nothing they can do about it.
This implies the common false dichotomy though that public officials can only be either: elected in toxic, wasteful campaign cycles every 4 years; or completely independent of public oversight. Those aren't the only two mechanisms that exist to develop an administrative apparatus. They are actually two points on a spectrum, and in fact closer to being at either end of the spectrum.
One, quick example: You can have appointed experts who can be recalled by public input but never have to campaign for election. I'm writing this in short minutes with zero research so be assured there are countless possible systems that exist in the infinite space between the two binary options implied by your dilemma.
In other words, being elected to office is not the advantage of congress. The advantage we seek is public accountability. Public elections are a pretty fucking poor proxy for accountability though because we end up with single-issue voters acting out of rage and electing people who are specifically inept at their job.
> Everyone fantasizes about government by an unelected group of experts, until they wake up one day and find out those unelected experts don't share their values at all -- and there's nothing they can do about it.
When your opponents are lying, cheating, and breaking their own made up rules (no supreme court nominees during the lame duck session unless nominated by a Republican) your characterization is uncalled for.
Yes, the right have been doing it for a long time and it works. Either make it stop working, or copy the thing that works. Don't just handicap yourself to a guaranteed loss.
The rules are that the executive can appoint judges. Right wing executives take advantage of this rule. Doing the same from the other corner seems reasonable too. The failure to do so means that the Democratic party is incompetent, uninterested in enacting their own alleged policies, or some combination of the two.
Some people say "if you're not cheating, you're not trying" but this is even a level removed. This is a perfectly legal move that they've denied themselves for no material reason.
Appointing people based on party loyalty is always cited as one of the major reason the Soviet Union became a slow-motion train wreck. It's not something America should emulate.
Not to mention that packing the courts could well be interpreted as an open attack against the separation of powers
superficially this argument seems reasonable.. but my limited understanding of the history of the Supreme Court of the United States says that there have been substantially different eras, and substantially different rules in those eras, for this same Federal body. Needless to say, in a "two party" political system, the details of what each of those two parties represents has also changed dramatically.. i.e. what is called conservative has changed quite a lot, many times.. same with "liberal"
The issue is that the "ethics and morals" of the powerful are in reality weapons pointed at working people. If using state power gained through elections to improve the lives of the people who elected you is immoral or unethical, your system of ethics is a farce.
Indeed they have already done so - many left-wing voters are swearing off voting for Biden, over his support for the Gaza genocide. This guarantees a Trump victory.
You may trust the nation's top lawyers more than Congress. But in recent decades those lawyers have been picked for ideological purity in a process that distills what is bad about our political process. As a result I now trust Congress more than the Supreme Court. And not because I trust our broken Congress more than I used to!
> I would trust the nations top lawyers more than most of the congress members we have
If you're referring to the justices, who are approved by those Congress members you don't trust, it is a dramatic stretch to assume they are the nation's best lawyers.
There's no federal constitutional requirement for anyone to have legal training or certification to practice law in the USA.
The requirements to practice law in the federal system are set by the judiciary itself. This dates back to England where getting "called to the bar" meant the judge giving you permission to go to a physical bar separating the spectators from the court.
It wouldn't make sense to mandate judges to be lawyers if they decide who is and isn't a lawyer. That would give the judicial branch control over their own appointments.
This is taking power away from regulator bodies like EPA that enforce the laws and giving it to the courts... taking the enforcement out of the hands of the experts.
How is it "taking the enforcement out of the hands of the experts?" Judges are supposed to be experts on law. That's literally their job. If the parties before them feel that they need expert knowledge to render the right ruling, then they need to take those experts and either depose them or have them testify. Expert witnesses are a thing; this is not some new idea.
> How is it "taking the enforcement out of the hands of the experts?" Judges are supposed to be experts on law.
Because the laws are about particular things in the real world that have nothing to do with the legal system. They are frequently about scientific matters, for example. What constitutes a threat to public health? What constitutes pollution of a waterway?
When Congress authorizes an agency to maintain, say, clean drinking water, it entrusts scientific experts to determine, based on the most up-to-date evidence, what constitutes a pollutant that is harmful to human health. We do not need Congress to pass a new law every time we get new scientific evidence that a particular chemical (say, PFAS), is harmful.
They did do that, every agency exists with a mandate.
SCOTUS just decided that despite the madnates existing, being funded, and being regularly renewed, that's not good enough.
But they haven't defined how specific the mandate and laws must be. They can just, you know, keep shifting the goal posts until they get the desired result.
Because this is not law in terms of billy having stolen a bushel of apples, and the expert is not called on to evaluate the value of the apples in order to determine whether billy is below or above the line for a class 3 misdemeanour.
The statutes regulating agencies are generally broad signposts, giving the agency a mission statement and a direction but leaving it a large latitude to implement it and decide on the details. That latitude has a legal implication since the agency is generally responsible for setting and enforcing standards.
The Chevron Deference is the legal doctrine that since congress delegated its power to the agency as matter and implementation experts, the agency's policy decisions should be deferred to so long as:
- it's legally ambiguous aka congress has not answered the precise issue themselves
- it is a permissible construction of the statute
The entire point of the chevron statute is that it's not up to the judicial branch to set government policy, and if a problem is a legal void then they have no authority, and unless and until congress makes a specific decision the agency does.
The US is a constitutional republic, not a dictatorship of experts. Go to Singapore if you want that.
What I find funny is how the court is simply asking Congress to do their job - be clear in the intent of how laws should be executed. None of this "well, I'll leave it up to unelected bureaucrats to decide" and people think this is somehow a bad thing.
"is a legal test for when U.S. federal courts must defer to a government agency's interpretation of a law or statute."
The idea Congress could pass a law "you can't pollute", and then a all of the legal details behind it aren't actually a part of the law, but rather "administrative decisions" by unelected state apparatus is a run-around of the system.
Congress can still pass such laws, and bureaucrats can create rules. The only difference is now the courts can overturn their interpretation.
Because congress cannot predict which new chemicals will be invited. They cannot act quickly enough to actually adapt to realities of the world today.
Is CO2 a pollutant? Who decides? Congress or scientists? Judges or scientists?
Now do that for every tiny detail of every part of every law.
It is computationally intractable to write laws specifying every possible scenario and exactly how an agency should act.
I don’t think you realize that these laws were passed with the understanding that agencies would fill in these gaps. Congress wanted these agencies to make these decisions at the time these laws creating said agencies were passed.
But, this decision didn't take those powers from Congress. It took those powers from federal agencies. Congress empowers the agencies, yes. But, Congress also deferred any technical decisioning to the agencies. Those agencies are filled with actual experts who are fully committed to their field. Now, the court just said that those experts aren't the right place to enforce anything but judges are.
>Personally, I would trust the nations top lawyers more than most of the congress members we have. However, it doesn't take much imagination to see the new issues that could arise)
Good luck with this.
At least these corrupt politicians come to face the music every four years.
> because the large group of politicians can't get their act together and pass well-reasoned and descriptive laws
How do you figure? This ruling says that Congress must be domain experts in every area, and agencies must merely implement the specific policies that Congress dictates.
Is that even possible? For anyone? Sure, Congress is dysfunctional but so what? This new regime is unworkable, and it doesn't matter if it's dysfunctional politicians or "top lawyers".
People on this thread are talking as if this decision stops Congress delegating powers to the executive, or the executive drafting laws for Congress to pass. It clearly does neither.
It's actually constitutionally entirely reasonable to demand that lawmakers are the people who make law, because there's no specific reason to assume that the volume of laws should naturally drown the people responsible for them. But even if you do assume that, nothing in this judgement would restrict the volume of laws passed in any way. It's just not about that at all.
The "volume of laws" required to regulate a complex modern society is far greater than that required for the US 200+ years ago. Thats why successful nations use rule-making agencies to regulate commerce, environmental protection, workplace safety, etc. Expecting the legislature to do it all is just not going to scale - which I suspect is the objective. The people behind these decisions want an overloaded, ineffectual legal system because that creates the best conditions for unrestricted accumulation of wealth and power.
I think you're missing the ideological motivation. It's all about ensuring a healthier system of checks and balances. When courts are forced to defer to unelected bureaucrats, they serve basically no purpose - yet our entire legal system is supposed to be predicated on checks and balances at all levels. By returning the ability of courts to hear and legally judge the merits of law, at their discretion, you help maintain an overall healthier system of checks and balances.
It all comes down to centralization vs decentralization. In a completely decentralized system you will never have an amazing outcome, because there will always be plenty of people doing stupid things - this includes judges. Yet you will also never have a horrible system, for basically the same reason - there will always be plenty of people doing 'smart' things. By contrast, centralized systems can yield a complete utopia under the oversight of socially motivated, intelligent, and highly capable leadership. Yet they can also yield the most unimaginably horrific dystopias under self centered, foolish, and incapable leadership.
So which does one prefer? In the end I suspect this is one of those issues where we all think other people think the same, but they most certainly do not. I personally could not imagine anything other than a system decentralized, to its greatest extremes, in every way imaginable. Because if I look at the political types of modern times "socially motivated, intelligent, and highly capable" are not generally the first words that come to mind.
> The "volume of laws" required to regulate a complex modern society is far greater than that required for the US 200+ years ago.
I'm not going to get into debating this directly, but please be aware that arguments about the complexity of society are ideological in nature. It's not a simple factual matter on which there's widespread agreement. Many conservatives don't even agree with the premise that society has such a thing as complexity, or if it did that there's a higher level today than in the past.
The desired effect is to break the federal government so states that want to e.g. pollute the environment and leave the poor uneducated can do so without interference.
But that means they would never be done with any law. Rather than creating the EPA in the 70’s and funding and authorizing it to do its thing, every session of congress would have to consider every topic that comes before the EPA every year.
This might be a cynical view of things, but I think it's planned, rather than a happenstance result of dysfunction. Gosh gee Willikers, the fellers in congress just can't get anything done ¯\_(ツ)_/¯
It's no coincidence that Republicans simultaneously obstruct congress AND have a well-oiled machine to get their political allies on the bench. The playbook is like this:
- The Federalist Society establishes a pipeline of ideologically consistent judges. From law school to the supreme court.
- Congress blocks anything and everything on the legislative, so that any actual new change to the laws of the land come from new interpretations by the courts.
- This bloc in the lower courts works to bubble up good cases when they come, to get them before the higher courts.
- Every time there is a Republican in the executive, they appoint as many judges as they possibly can from this ideological bloc [1]. This ensures that a good case, when it comes, has a clear path from the bottom (local) courts to the top (supreme) court. The merits of appointees do not matter in the selection process - only a pledge of ideological fealty.
This project has been actively working for decades to change policy. There is nothing like this on the other side of the aisle. These are lifetime appointments. You cannot win on "good faith" against tactics like this. "Good faith" is insisting that the Judicial is "not political," it's not stepping down when it's politically opportune to do so.
[1] "At the 2018 Federalist Society gala, Orrin Hatch, the former Republican senator from Utah, declared, to the crowd’s delight, “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!’”https://www.nytimes.com/2020/05/20/opinion/trump-judges-fede...
Obvious check #1: Congress gets its sh*t together, and stops writing endless vague blather into law.
Obvious check #2: Congress enlarges the Supreme Count to 21 Justices. And lets the President know that his nominees for the 12 new positions will need to understand who's the real boss.
Why stop at 21, why not get 1 supreme court from each state? You could get 2 if you wanted to be spicy and setup a sort of room for them all to debate in. Then after they heard the debates they could vote on the matter and if it passes it gets written into law. A sort of congress...
Increasing the size of the court isn’t a slippery slope to somehow making justices elected by states/districts. It’s not like as soon as you get too many justices it turns into a legislature.
The interesting differences between the legislative and judicial branch is not the number of people (moreover, the Supreme Court is not exactly the entirety of the federal judicial branch).
I was thinking "enough to routinely overrule the current 9 Justices".
Representing individual states, as such, is supposed to be the job of Congressmen. And - with how low-functioning Congress is looking, these days, patterning anything new after them is probably a bad idea.
So Congress is dysfunctional. The Supreme Court is semi-functional, but functioning in a way that you don't like. So you want Congress to vote in a bunch of new people to fix the Supreme Court. Why do you think that will work, instead of be ruined by the usual Congressional dysfunction?
And, if the party in power adds enough Supreme Court justices to routinely overturn the current 9, what makes you think that when the other side is in power, they won't add enough to overturn your 12?
The Supreme Court is not supposed to bend with the wind of every political election. It's by design.
Particularly given McConnell's... Interpretations... Of how his obligated duties were fulfilled in regards to the timeliness of actions taken to ensure that such seats were filled.
Are you asking if it did bend to the right? You’re asking if an additional conservative vote shift in a hairline composition shifted the balance? Would you be asking the same if it was a 6-3 liberal majority?
This courts been in power for 8 years and has overturned 3 major ways that the government operates:
1. Roe v Wade overturned so that the government is back in charge of reproductive rights decisions instead of leaving it as a deeply personal decision for a family to make on their own. There’s pretty clearly a lack of any evidence that late term abortions are a cavalier thing. When it gets that late it’s not a change of mind thing 99.999% of the time.
2. Brady and similar decisions basically removing congress’ and states’ abilities to regulate guns
3. Chevron doctrine overturned so unless congress writes impossible laws the courts get to arbitrarily define ambiguities even though it was delegated to the executive to create justifiable well researched exposition of those ambiguities.
Basically, this court has already delivered 3 major decisions shifting American politics in pretty drastic ways in the 8 years. This is certainly not a liberal or status quo court.
And the court itself has serious perception issues of accepting gifts and bribes (and significantly reducing the definition of what counts as corruption in the first place, which is well outside their mandate considering these are actually laws congress passed). They’re badly in need of cultural reform as is congress and in both scenarios adjusting the number of representatives and the number of justices is called for to relieve the pressure that’s been building.
Don’t forget that they legalized bribery as well. Just so long as the payment is made after the fact it’s considered a “gratuity”. This court is making drastic long reaches changed and overthrowing precedent whenever convenient.
> The high court’s 6-3 opinion along ideological lines found the law criminalizes bribes given before an official act, not rewards handed out after.
> “Some gratuities can be problematic. Others are commonplace and might be innocuous,” Justice Brett Kavanaugh wrote. The lines aren’t always clear, especially since many state and local officials have other jobs, he said.
> The high court sided with James Snyder, a Republican who was convicted of taking $13,000 from a trucking company after prosecutors said he steered about $1 million worth of city contracts to the company.
Roe v Wade and gun control are pretty classical cultural war stuff from the 60s and 70s. I’m not sure where you’re getting it but the left being pro choice and the right being pro life are classical left/right distinctions in America since at least Roe v Wade or shortly thereafter. Similarly, gun control also became a classical left/right distinction once the left decided that gun ownership was a public safety problem and the right decided that personal gun ownership is enshrined in the Constitution.
Can you clarify how these aren’t left/right distinctions?
it removed restrictions on abortion, allowing local parties to decide for themselves, it seems constitutional but not partisan, RvW was also an abortion ban don’t forget
By what reasoning is RvW an abortion ban? It was a ban on abortion bans but that’s very different. The only restrictions Dobbs removed were those impeding bans. If you listened to the debate, Trump said pretty clearly he’s against late term abortions and if the right takes power next year a federal ban superseding local parties seems inevitable. So you have to jump through a lot of mental hoops to pretend like Dobbs was anything other than a step on the road to a full federal ban on abortions (first it’ll start at something like 16-24 weeks and gradually be shifted earlier and earlier and you’ll claim “well technically they didn’t ban abortions altogether”).
As for constitutional but not partisan, it was a 6-3 decision along ideological lines. And famously the criticism from the left of Roe v Wade was that it found protection in the wrong parts of the constitution - that it was based on privacy and physician rights instead of women’s rights. So you’d have to be willfully trying to deceive to paint this as a non-partisan issue.
You act as if this is the first time that expanding the court has been discussed.
Congress has yet to do this because it will never pass - at least unless one party gets a filibuster-proof majority in the senate or the filibuster is removed.
> And lets the President know that his nominees for the 12 new positions will need to understand who's the real boss.
And who, in your view, is supposed to be the real boss? Congress? Or the President?
The Supreme Court is supposed to be independent. Changing that needs a much higher threshold than "bell-cot doesn't like some recent Supreme Court decisions".
I have a fantasy solution that I know will never be implemented, but in my mind resolves all objections to expanding the court.
Promote all eleven judges in the DC circuit court of appeals to the Supreme Court and leave the appeals court empty. For each vacancy that occurs on the Supreme Court, the president gets to pick one judge for the appeals court, until the Supreme Court justice count is back to 9 and the appeals court judge count is back to 11; at which time things go back to status quo ante.
This would allow the Supreme Court to be rebalanced without the president packing the court with partisan choices. Rather, it respects the record of judicial confirmations for the appeals court going back almost 40 years and several presidential administrations.
It would increase the number of perspectives on the court and make the Justices work harder to find consensus, rather than the majority being able to lazily fall back on pet legal theories that are out of the mainstream.
It would counter and largely nullify the Republican strategy of targeting the Supreme Court with nomination of extremist and underqualified candidates with significant questions about their backgrounds, and confirming the nominees with dubious political maneuvering.
It would be hard for Republicans to escalate; i.e., if a Democratic president added 12 slots to the Supreme court, what's to stop a Republican president and congress adding 20 more at first opportunity, and so on. Republicans could choose to elevate another court's judges to the Supreme Court, but that would tend to further balance the Court and make decisions more unpredictable, rather than produce a clear partisan advantage.
It would take the Supreme Court nomination issue out of presidential politics for a generation.
Despite FDR being quite popular with his New Deal laws, his own party was prepared to toss his ass out for trying to stack the Supreme Court in order to keep parts of his New Deal alive.
It would be political suicide for either side to do that.
Complaining people have been suggesting it for a long time. They seem to be of the "anyone who doesn't agree with me is obviously either stupid or evil" type.
I'm with you, though, that it feels more possible than it ever has before. If it does actually happen, it's going to be a huge change. The Supreme Court will no longer have any believable claim of being unpartisan, and democratic norms will be broken in a much broader way than ever before (barring January 6).
So if it happens, take note. America after that won't be what it was before it.
There are so many things happening in America in just the past 6 years that it’s nothing like anything that has happened in existence - each year.
I have never seen an insurrection in America. Legislators in the American Capital had to be evacuated not from an invading army, but people with some plan to overthrow them. Trump alone is so dense with examples of “wont be the same” that I can only think of fractals when I try and list the things that have happened.
The US went through a civil war. A President was impeached. The US was defeated in a war in Asia. We had race riots every few weeks. National leaders were assassinated with alarming regularity.
The idea that the last few years have been "nothing like anything that has happened in existence" seems quite naive.
> Legislators in the American Capital had to be evacuated not from an invading army
And some even claimed to be there who weren't for political points.
Exactly, the statement is very telling of the lack of understanding of how our government is supposed to operate, how and why the system is set up the way it is.
Congress would have to agree that the power really belongs with them, and agree to limit the Court to only that which is covered in Article III. This is entirely plausible, but I think unlikely in the short term.
It sounds to me like they just gave the legislative branch some of it's responsibility back. Delegating their job to the executive branch of government has created agencies that make and enforce rules themselves, and ultimately operate at the whim of whoever the president happens to be at the time.
If congress wants to delegate details to experts they could explicitly state that in the law, and create their own organization of experts to do the job. Giving the president more power is not a requirement, and enforcement should remain separate. But even then, regulations shouldn't be ambiguous. The laws should state something like "food purity should be within %x of yada yada, where x is updated yearly by the appropriate agency" Then it's up to the courts to decide if the law was broken or not.
In the short term this could be a nightmare as companies flaunt all sorts of regulation, but I think overall it is a good thing.
> The laws should state something like "food purity should be within %x of yada yada, where x is updated yearly by the appropriate agency" Then it's up to the courts to decide if the law was broken or not.
This is kind of true, but also belies the depth of the Chevron change. In this example, plaintiffs can now, for example, challenge how the "X%" calculation is done. What's an appropriate methodology?
In the past, courts deferred to the agency: as long as it's scientifically valid + consistent, it's up to the regulator, not a judge. Now, it's up to a judge.
So if I sue and say "you should use a 0.01 alpha for calculations, not 0.05" for your X% calculation, then a judge makes the methodological decision, not the statistician.
IMO, it's not really reasonable for congress to design statistical methodologies as part of the text of a bill.
but if congress explicitly states that agency xyz will update specific numbers wouldn't that be pretty solid? As far as I can tell, this is just about leaving it up to the courts when things are ambiguous, which is kind of the point of courts.
Sure, but "EPA to determine methodology, including statistical parameters" is still ambiguous.
What's the process for determining the methodology? Would another process have been better? Does the plaintiff's proposed approach for methodological determination also conform to this law?
In this case, "how to go about determining methodology" is left ambiguous, and is now the province of the courts, not the EPA.
The only checks involved were in the mail, and almost certainly addressed to Clarence Thomas, who has taken more in bribes than the last 30 other justices combined, and that’s only the ones he’s been caught on.
This is the Supreme Court that claims, "In the summer of 2023, Justice Samuel Alito told the Wall Street Journal that Congress has no authority to regulate the Supreme Court, despite the ethical regulations Congress already imposes on the justices" (https://www.brennancenter.org/our-work/analysis-opinion/alit...) and that does not have any binding code of conduct.
That’s exactly the argument of this (exhaustive) Harvard law review piece from 2022, that the sole pattern of the supreme courts decision making is that it accrues power to itself at the expense of other branches of government
> Chevron is probably the most frequently cited case in American administrative law,[16] but some scholars suggest that the decision has had little impact on the Supreme Court's jurisprudence and merely clarified the Court's existing approach.
The judgement discusses that. Previously in cases where a statute was ambiguous the courts interpreted it. Chevron changed that to allow the executive to interpret ambiguous laws, but the judgement argues that interpretation of the law is and always has been the role of the courts.
Others have said this using different words, but I'm going to chime in anyway. I don't think the courts will have more power. SCOTUS is saying that congress needs to actually make clearer (better?) use of its power by being more explicit when legislating (i.e. when writing laws) instead of relying on the executive branch agencies (for those unfamiliar with the US political structure, agencies like the FDA, EPA, etc. are executive branch agencies that, ultimately, report to whomever is the current US president) to interpret and in many cases read into the laws that congress has passed.
The more practical reality of this ruling is, I think, this: there is no world where this is a win for anyone who believes in a bigger US federal government. This is a huge win for those people who believe the power of the federal government should be limited. It's likely the biggest challenge to the size of the federal government in my lifetime and I've been alive for a good bit. The dysfunctional congress that the US currently has makes it a certainty that in the short term countless regulations will be unenforceable and therefore this will be a picnic for anyone who is anti-regulation (note Trump in the debate last night where he talked about scrapping regulation. In comparison to this decision, Trump's regulation-slashing will look like he shot a rifle in comparison to the shotgun SCOTUS just fired).
Last comment: this SCOTUS has made it clear that the federal government will be massively restrained. There are two avenues by which they've made this clear: first, they have ruled very aggressively in favor of state's rights (especially when it comes to social issues like abortion), and, second, with this Chevron ruling, federal agencies will not be able to make decisions unless there is explicit intent in the laws that congress passes.
I'm having an extremely difficult time wrapping my head around just how epic of a change this SCOTUS has brought to the way the US population is governed, at both the state and federal level. Hard to really comprehend the gravity of the coming change, which will take decades and decades to fully understand.
> This seems like the judicial branch just voted to give itself substantially more power.
100% this but it's not new. This court claim to be "originalists" or "textualists" (even though "originalism" was invented in the 1980s) but has made a massive power grab that we will feel for decades. The "originalists" invented two new doctrines to justify this:
1. History and tradition. Basically the court decides if how something was in 1780 as a legal basis for interpreting the constitution and law. Remember at this time some peoplw were property, women couldn't vote and there was no interracial marriage. This is the "history and tradition" the court seeks to return to; and
2. The major questions doctrine ("MQD"). This has gives sweeping powers to the court to say that even when Congress defined clear language if the consequences are "large" (as the court determines it) then the court can step in and say that Congress wasn't clear enough so the court gets to essentially write legislation and overrule both the legislative and executive branches. MQD was used to justify blocking student loan relief despite Congress giving the president and the education secretary expllicit powers in this regard.
The courts just remedied a situation where the executive branch of government had arrogated to itself powers reserved to the legislature by the Constitution.
Notably another case ruled on this week did the same thing, by invalidating many agency-specific “administrative courts” and restored the rights of citizens to seek redress in actual courts.
I and many others believe that executive branch agencies (“the federal bureaucracy“) has become an out-of-control unaccountable 4th branch of government, and I for one am delighted to see them reined in.
Note that agencies will still be able to perform enforcement; they just have to stay within the bounds set by laws and they will no longer be the sole arbiters of those bounds.
Hey, that was the goal and plan of the various organizations that got these judges in place.
I mean, what checks and balances apply to focused, dedicated, funded campaigns and teams, supported by backers willing to spend multiple decades and the millions necessary - to over turn laws, win minor elections, get judges into lower courts? People spent the time to understand the system so that it could be changed in a way they think is superior.
The SC situation is the fruit of such labor.
The shortest path solution to something like this is still decades long.
No, that isn’t the case. It is saying that regulatory agencies cannot exceed their authority and act like the judicial branch. In other words, it was the executive branch that had taken more power previously.
> It is saying that regulatory agencies cannot exceed their authority and act like the judicial branch.
On any given matter there are, at first, no laws on a given subject. Before airplanes were invented there were no rules or regulations for airplanes (FAA); similarly, pre-radio, nothing about how to use EM fields (FCC).
Now, The (US) People gave The Congress authority to make laws on any subject (limited only by the Constitution).
Congress said we will make laws limited actions on Topic X, and when non-prohibited actions are done they must be done in certain ways as prescribed by regulations. Congress further said that they cannot, ahead of time, know every situation that might arise on Topic X, but further rules may be needed.
So Congress delegated further rule making, beyond the 'base' An Act to Regulate Topic X, to an agency that Congress itself created and funded via the above Act.
An agency only exists because it was created by Congress; it only runs because it is funded by Congress. Congress says, in particular Acts, that some agency should look after the details of Topic X so Congress does not have it.
Regulatory agencies have (limited) authority because it was given to them by The People (through their elected representatives).
Couldnt they just do this formally? Afaict scotus didnt rule it's unconstitutional for congress to explicitly defer, but the derefence, which originated in court precedent, isn't good.
Theres nothing stoping congress from explictly defering either via act or in the act. Right?
All this says is that if Congress defers something to a branch, and there is ambiguity, and it comes in front of a judge, the judge does NOT have to accept the branch's interpretation of the ambiguity, and can instead judge it as judges do.
Chevron said that if the branch had a reasonable interpretation (e.g, not batshit insane like saying "no arsenic in water" means "at least ten pounds per gallon of arsenic in water") then the judge should defer to it. Now the judge can but does not have to defer to it - if he pushes back, Congress can clarify the law.
This has been done many times in the IRS, where people find a "loophole", the IRS tries to patch it themselves, the courts say, yeah, nah, and then Congress amends the law to remove it.
> All this says is that if Congress defers something to a branch, and there is ambiguity, and it comes in front of a judge, the judge does NOT have to accept the branch's interpretation of the ambiguity, and can instead judge it as judges do.
So the Judicial branch has now taken on the task of determining policy, contra what was said in Chevron:
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
So if Congress makes something explicit it is a policy by The People (through their elected representatives), and if there's some ambiguity it might be done purposefully by The People's representatives (Congress), with the explicit and implicit idea to have an agency deal with it. The agency is run by The People's Executive choice (President) or administrators (Secretary, Director, etc) agreeable to The People's representatives (via confirmation hearings).
It isn't simple. The judgement states that broad implied deference to the agency of the act in question, per Chevron, is incorrect and the courts decide in the those case.
There were a ton of arguments that interpretation, in general, is an Article 3 right of the courts. Though, I'd assume if congress explicitly granted interpretation to the specific agency of the act, we'd have a separate case on whether they're allowed to do that (explicitly defer).
A textualist interpretation would be that indeed congress is now stopped from that, as anything that isn't described without doubt in an act of congress is now up to court to decide, not delegated agency.
Not "taken". It was inherently granted by Congress on the joint understanding that the intent was that agencies would engage in rule making to decide areas left undefined within the scope of the law as written.
Regulatory agencies are responsible to Congress, the Legislative Branch that has the power to adjust the law to reflect its intent. Judges are not. The understanding is that it is the agencies that are intended to have the best understanding of what they regulate, not judges.
Laws were written with this assumption in place, which the Court has just rug-pulled from the operation of the US government.
What Chevron said was that when the legislative branch gives an agency power to do X and there is some disagreement between the agency and someone else over precisely what X means and the agency's interpretation is reasonable the courts should use the agency's interpretation.
> In other words, it was the executive branch that had taken more power previously.
If I may disagree: it was the legislature that gave the executive branch power, and the judicial branch that essentially approved such an arrangement (unanimously) in the original Chevron ruling.
> If I may disagree: it was the legislature that gave the executive branch power, and the judicial branch that essentially approved such an arrangement (unanimously) in the original Chevron ruling.
But the only way to properly do that is a constitutional amendment.
To give an extreme though-experiment example: Lets say Congress 1) packed the Supreme Court with yes-men, 2) passed law giving themselves a huge pay raise and delegating all legislative powers to the President, while they go party. Didn't it just create a a king/dictator? Wouldn't that be unconstitutional?
> But the only way to properly do that is a constitutional amendment.
A constitutional amendment make it permanent, but Congress never actually lost control. They always had the power - and still do - amend, restrain, clarify their own laws.
> Didn't it just create a a king/dictator? Wouldn't that be unconstitutional?
In a scenario with a packed Supreme Court of "yes men" there are no bounds to what could happen, so why bother with the thought experiment? In your example, the constitution is already worthless.
The best argument for this is the "separation of powers" one.
In the system of Thursday, regulatory agencies can be "both judge, jury and executioner", ordering people to do whatever they want, since that's how they choose to interpret their mandate.
Power like this can and will be abused, even if it's true that the agency has the best expertise in the area.
It also makes it very dangerous for those who are abused to complain publicly, since they can arbitrarily be found in violation of the law as retribution.
This is no way to live, and the system of Monday should be better, even if it may be confused and cumbersome for a few years.
It Congress wants to change the law, they can. It's up to congress, not the administration, to make law. For decades it seems Congress has largely abdicated its legislative responsibility in exchange for the political ease of letting the administrative state, and the courts, make the law.
Just because something has "precedence" doesn't mean it's right. Banning gay marriage had precedence, but that didn't make it right. Slavery, segregation, all had ample precedence. They were still absolutely wrong then as they are now.
That said, it's also valid for Congress to decide to abdicate its powers.
We've had 40 years of Chevron deference, during which time Congress wrote laws expecting that this is how they'd be interpreted. If they didn't want this behavior, they could have passed laws about it. Or included some boilerplate language within new laws about how the agency has to defer to courts for interpretation of those regulations.
(Granted, by the same logic, they could presumably start adding some "these rules should be interpreted according to the agency's definitions" boilerplate to new laws, if they really want that.)
> it's also valid for Congress to decide to abdicate its powers.
It's not. There's long standing precedent, since well before Chevron, that Congress does not have unlimited ability to delegate its powers. E.g., in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) the Supreme Court said "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." See also J.W. Hampton v. United States, 276 U.S. 394 (1928).
And this makes sense, because Congress is not a coherent unified agent. It's a messy institutions for distilling the wishes of the people.
> E.g., in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) the Supreme Court said "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." See also J.W. Hampton v. United States, 276 U.S. 394 (1928).
If you want to talk about precedent, 1825:
> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.
Right, Congress can delegate details and implementation, but it can’t delegate basic legislation. That’s obviously a burry boundary, but it’s clear they can’t abdicate their powers in general.
> it's also valid for Congress to decide to abdicate its powers
Yeah, that's a "no." Taking away power from voters and handing it to unelected bureaucrats is specifically what the Constitution is meant to protect against.
All legislative power in the government is vested in Congress, constitutionally. That power cannot be delegated to anyone, precisely because it would result in tyranny and disenfranchisement of voters (i.e. "us").
The only way to enable this is to amend the Constitution, which, if that's what voters want, they can do.
> That on the first day of January, in the year of our Lord, one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, *the people whereof shall then be in rebellion against the United States*, shall be then, thenceforward, and forever free.
Slavery was legal in the border states until passage of the 13th Amendment.
For context. Roberts, Alito, and Thomas; who are still on the court were dissenting opinions on the gay marriage decision. Seeming to favor "precedence" when it's convenient.
The reality is that our political system cannot do what you ask of it. It is reasonable to allow executive agencies delegated authority from Congress to regulate the details of things with implied oversight of Congress
This is accelerationist or naive to think this is a good decision.
And yet, doesn't this give undue authority to the legal branch? like it just makes the legal branch the new administrative state. Reading through Chevron, it seems excessively logical to say that if a rule is vague, you defer to the people who made the rule to interpret it.
> This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
> It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court...
> Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517
U. S. 735, 740–741 (1996).
> Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.
To put it a bit differently: Congress has not been able to pass substantial laws in decades. The executive branch has filled in by interpreting these laws very loosely in order to adapt to the changing situation and—importantly—to adapt to changing presidencies.
That last part is the single biggest problem with the administrative regime as it has stood hitherto: it means that almost everything that happens in the federal government can be completely undone based on the results of a single nationwide election that we have every four years. It means that every right, every process, every plan that interacts with the federal government in any way has a four-year shelf life.
Government by administrative rule is why no one is getting too excited about non-competes getting banned or non-solicitation agreements curtailed. It's why I'm nervous about the future of the IRS's free tax filing software. It's why there are whole industries built up around trying to keep up with the latest about-face that the executive branch has made.
The existing system of administrative rules absolutely sucks for stability. It sucks for anyone who gets used to a benefit only to have it stripped out with an administrative change. It sucks for anyone who's trying to plan anything out on a longer timetable than four years.
If this forces Congress to get their shit together and pass lasting laws that can't just be upended with the next presidential election or if it forces states to start taking on the role that the federal government has hitherto failed to fill then in the long run this ruling will be better for everyone. It's just going to be very uncomfortable for the next few decades as we sort it all out.
> The existing system of administrative rules absolutely sucks for stability.
This new system is even worse. At some point, the Judiciary will make a poor ruling. Perhaps this ruling is impossible to hold to, but maybe the executive branch decides to usurp the court of its own volition. Then what?
The checks and balances system of our government only works when everyone plays nice. But if push comes to shove, then the executive branch is the one that holds all the power. They don't have to obey the legislator nor the judiciary -- neither has any real capability to enforce their will.
The country has been slow rolling into single pillar government structure for decades now. IMHO, this ruling is a huge step towards solidifying the executive branch as the de facto sole branch of government. Government agencies were provided a mechanism for all three branches of government to work together, legislators provided scope and leadership, the judiciary provided checks, and the executive provided the operations.
Once the agencies are all gutted, a future administration is going get an opportunity to act on their own via executive authority and they will ignore any attempts by the court to stop them, because the court is literally powerless in all but word. And that's what opens the door to a president who begins seizing assets of political opponents.
Lots of authoritarian countries masquerade as democracies because legislators and judiciaries are inherently powerless to stop executives.
I know plenty of people will counter with the old way was supporting an authoritarian executive. But to them, I'll point out that the agency system has ~100 years of efficacy behind it.
> I'll point out that the agency system has ~100 years of efficacy behind it.
The agency system you are advocating for has only a few decades of history. Chevron was a 1984 decision, and didn’t really rise to prominence until the Obama administration.
The 1984 decision was a case contesting the agency system's authority. The result of that case confirmed the status quo, which existed long before 1984.
Up until the ACA, political platforms were accomplished by passing legislation. There was always ambiguity in that legislation to be resolved by courts, and nothing in today’s decision changes that. But prior to Obama’s administration, it was really rare the agencies would enforce policies with no basis in the law whatsoever.
That’s what Chevron deference is about. There is no law on the books that gives the FTC authorization to ban non-competes. They just argued that it kinda-sorta fell within the scope of their expertise and did it.
That is by and large how the government has been run for the last decade and a half. It is not how the government has run for most of the last 100 years as you claim. Most of that time period the agencies stuck to the letter of the law, only deviating in rare circumstances.
> There is no law on the books that gives the FTC authorization to ban non-competes.
Sure there is; it's the Federal Trade Commission Act, which says "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."
They, through the regulatory process, correctly determined that non-competes are unfair methods of competition.
> But prior to Obama’s administration, it was really rare the agencies would enforce policies with no basis in the law whatsoever.
Obama's administration changed the makeup of the court with his loss of Scalia's seat, failure to pressure RBG to resign, and Trump's subsequent picks; that's what changed. The regulatory setup long predates his presidency. Chevron fell because the court got extra conservative members, nothing more.
> Sure there is; it's the Federal Trade Commission Act, which says "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."
Not really. Do you think "Unfair" has an objective definition? Just saying something is unfair won't make it automatically or objectively unfair. Non competes are not deceptive.
It may be covered but the point it is not logically implied by the text you quoted.
Compare that with the objectivity of this (still contains a lot subjectivity):
Their point is that the "power" of the court is words and respect for its rulings. If the executive branch defies the court, the court can't actually do anything about it.
Too much importance and deferral has been granted to the courts. It was a mistake to imbue that institution as the "third branch of government." I came to view that take as propaganda when I was younger and have soured increasingly more on the SCOTUS over these last few decades. I view that court as very dangerous and in need of being smacked down a peg or two.
Congress has ultimate authority, period. So the SCOTUS running amok is a very bad look and smell.
And imagine how our allies feel. If you can’t count on the U.S. for more than about 3 years at a time, then you quickly move away from them and insure you aren’t so tied to them that a foreign election suddenly makes you vulnerable. Which then makes everyone weaker as a whole and easier to pick off.
Which is why U.S. foreign adversaries have been actively sowing chaos for a decade.
America for better or worse (mostly worse) has a two party system that in practice functions as mostly a uniparty prioritizing defense spending, entitlements, and the economy, with some lip service paid to red meat/blue meat issues to ensure power is maintained. This means you can reliably predict what American policy will be in any given moment for any given president.
Besides, EU member states have had much more iteration on their governments, policies, regulations, and parties. It's not uncommon for a European country to have 7 different parties. And unlike the US, EU's don't hold their constitutions in a such unchanging high regard. Ours is purposefully difficult to change. France, for example, on the other hand, has changed its constitution twenty-five times since circa 1958.
edit: I took out He-Who-Must-Not-Be-Named because it seems even here on the board of Very Smart People ™ we can't help ourselves when we see that name and ignore the rest of the point someone tries to make.
You say this as though he isn't favored to win the next election and take over the presidency and all its policies in about six months.
Edit in response to the edit: I latched onto this because it's entirely relevant to the rest of your point. Trump is the Republican party today, and his foreign policy dictates the acceptable stances for the majority of Republicans in Congress. His foreign policy is absolutely terrifying to our allies.
I didn't latch on to Trump because he's a big name, I latched on to Trump because you deliberately glossed over him as though he weren't an enormous glaring example of how quickly our foreign policy can (and is likely to!) pivot.
I never understand this mentality. They continue to support expanding the power of the executive until it consumes all functions of government, while simultaneously declaring that Trump (and every Republican candidate in every presidential election) is basically Hitler. As if it is inconceivable that the technocrats they relate to will never lose control of government (and legislative agencies.) This, when a wrestling valet Berlusconi-level carnival barker was just elected president eight years ago against the (appointed through a goofy primary) übertechnocrat H. Clinton. That was their best and brightest, and the public was disgusted.
My theory is that liberals were made mentally dull by the Warren court, that it created this unacknowledged model of government within their minds where all actual controversies are low level, and will eventually work their way up to the Supreme Court, who will simply dictate the consensus liberal opinion to be the law.
It's a world where Congress has no other function but to create regulatory agencies to which they appoint their campaign staff, thinktank creatures, friendly professors, lobbyists, and each other's friends and family. To fill in the gaps, the country is otherwise ruled through executive orders, and all resulting injustices from this system are to be straightened out by the Supreme Court. That world is very much gone, and nobody has adjusted because all of their theories on liberal governance come from a period during which this was close enough to true (although gradually less and less after Warren.) It is not now true. We (and liberals) can stop worshiping the members of the Supreme Court now, and simply treat them as smart, connected people writing opinions that we may or may not agree with, instead of some holy chamber of wizened elders.
It's profoundly anti-democratic. It's an exact counterpart to the theocrats on the conservative side, but not grounded in anything but current upper middle-class trends and a belief in Whig history to replace the belief in gods.
If we can't fix Congress, and get them to actually govern, there's no government worth saving. I'm not going to fight for the right of the president to unilaterally declare war, rule by executive order and Supreme Court dictates, or the actual functioning of the country to be delegated to unaccountable regulatory agencies. Doesn't spark joy.
edit: I think the existence of the Senate probably adds to the level of liberal cynicism about democracy. It should really be abolished or directly elected in a way unconnected with the states. We already have a geographically based body in the House. The Senate is clearly a distortion of democracy, like a sensory homunculus for representative government (https://en.wikipedia.org/wiki/Cortical_homunculus#Representa...)
> It's a world where Congress has no other function but to create regulatory agencies to which they appoint their campaign staff, thinktank creatures, friendly professors, lobbyists, and each other's friends and family.
And they call anything that takes power away from this unelected shadow government "anti-democratic."
2016 was absolutely fascinating because, while it’s possible it was a double fakeout, it really looked like the first shoot in presidential politics in my lifetime. Insofar as there is a script, it sure does look like The Nameless One went off it. It was totally obvious the intent was for a Bush vs Clinton rematch.
Foreign policy is mostly up to the executive branch and is far removed from the decision-making process regarding whether or not the EPA can regulate a new type of deadly plastic.
